I spent last week working on a record 5 Judicial Review applications on a variety of subject mattersRead More
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The commentary provided on this blog is not legal advice and should not be relied upon as such. Contact one of our Immigration Lawyers to get proper legal advice on your case.
I recently appeared before the Federal Court on a judicial review of a negative Refugee Appeal Division (RAD) decision. The claimant was a Cuban national accused of flouting Cuba's currency controls.
The Applicant was self-represented at his refugee hearing before the Refugee Protection Division (RPD). As such, the corroborative evidence was far from idea. However, the RPD did find him to be detailed and consistent in his evidence. The RPD rejected the claimant's documents alleging they could not be independently verified to be authentic. However, the RPD made no actual efforts to verify the documents. The RPD also made a host of negative plausibility findings, which it said disposed of the claim in light of the lack of verifiable corroborative documents.
The claimant exercised his appeal rights to the RAD, which agreed that the RPD had no basis to find the claimant's documents to be fraudulent. However, the RAD simply dismissed the claimant's corroborative documents as "not helpful", without elaborating on why it was so. The RAD then adopted and affirmed the RPD's negative plausibility findings and rejected the appeal.
We then sought judicial review at the Federal Court. The crux of the argument was the difference between credibility findings and plausibility findings. The Courts have consistently held that plausibility findings must only be made in the clearest of cases. Justice Fothergill allowed the Judicial Review, finding that the RAD's negative plausibility findings were not reasonable, and had no basis in the evidence.
The important take away from this one is to ask whether negative plausibility findings were reasonably made by a decision-maker. Simply because certain events may seem implausible in the Canadian context (or Western culture), does not render them impossible in countries like Cuba.
The matter will now be returned to the RAD for a new decision to be made by a different Member. Now comes the task of putting forth any further evidence on the claimant's behalf and addressing the issues raised at first instance by the RPD and RAD.
Fulltext of the decision available here.
It can be very frustrating, not to mention puzzling, when an immigration application is refused. Whether that application is for a temporary visa (to visit, study or work in Canada), to permanently immigrate, or a hearing gone wrong, the question is what can be done about it. The answer may be a Judicial Review ("JR") application to the Federal Court.
If you have had your application refused, contact us immediately for advice on what to do.