Sin of Omission: Exploring a Key Credibility Inference in Canadian Refugee Status Rejections

Authors

Hilary Evans Cameron, Lincoln Alexander School of Law at Toronto Metropolitan University

Document Type

Article

Abstract

Refugee claimants in Canada must submit a “Basis of Claim” form to the Refugee Board before attending a hearing with the adjudicator who will decide their claim. On this form, they are expected to produce a written narrative that explains “everything that is important” about their experiences. At their hearing, many claimants encounter, for the first time, a key principle of Canadian refugee law: The omission of any “important information” from this narrative suggests that they have invented their claim. This study takes a close look at how this “omission from the narrative” inference is operating within a set of judgments by Canadian refugee status adjudicators. It provides the first quantitative overview of the role that this inference plays in a sample of Canadian decisions as well as the first in-depth analysis of this kind of high-stakes legal reasoning. Negative credibility findings were at the heart of the decision to reject a large majority of the claimants in these decisions (72 per cent; 217/303), and the adjudicators in these cases relied on an “omission from the narrative” inference in almost half of the decisions in which they concluded that the claimant was lying (49 per cent; 128/259). The major premise underlying this inference is that, in drafting their narrative, the claimant would have understood what information the Board expected them to provide. The claimants in these decisions raised strong challenges to this premise, and the adjudicators did not identify compelling support for it. At least in the context in which it currently operates in Canadian refugee hearings, adjudicators cannot, therefore, reliably infer deception from the fact that a claimant has added even important new information at the hearing. This conclusion has implications for the Canadian refugee system’s administrators; for adjudicators; for appellate-level decision makers and judges; for legal aid systems; for counsel who represent refugee claimants; and for researchers who study refugee status adjudication.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Evans Cameron, Hilary. "Sin of Omission: Exploring a Key Credibility Inference in Canadian Refugee Status Rejections." Osgoode Hall Law Journal 60.1 (2023) : 127-174.
DOI: https://doi.org/10.60082/2817-5069.3877
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss1/3

References

1. Refugee claims in Canada are decided by adjudicators at the Immigration and Refugee Board, which is an independent administrative tribunal. They apply the provisions of the domestic law, the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], which incorporates Canada's obligations under the Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 art 1C(1), Can TS 1969 No 6 (entered into force 22 April 1954) [Convention]. The Basis of Claim form that claimants are required to submit to the Board at the beginning of the claim process asks them to list, in a series of boxes, a quantity of personal information such as name, date of birth, nationality, citizenship, past addresses, and any past visa applications to Canada. It also asks them to write on the lines provided, and on "additional sheets of paper" if needed, the answers to a series of questions under the heading "Why you are claiming refugee protection in Canada." These questions include the following: "Have you or your family ever been harmed, mistreated or threatened by any person or group?"; "If you returned to your country, do you believe you would be harmed, mistreated or threatened by any person or group?"; and "Did you ask any authorities such as the police, or any other organization, in your country to protect or assist you?" See "Basis of Claim Form (For Persons Claiming Refugee Protection in Canada)" (November 2012), online (pdf ): Immigration and Refugee Board of Canada irb-cisr.gc.ca/en/forms/ Documents/RpdSpr0201_e.pdf [perma.cc/BUQ2-DRV9] [BOC Form]. In the language of Canadian refugee law, the claimants' answers to the latter questions collectively comprise their "narrative."

2. See Basseghi v Canada (Minister of Citizenship and Immigration), [1994] FCJ No 1867 (QL) at para 33 (TD). See also (174) MB5-05577; (265) MB6-00393; (072) MB5-03883; Hammoud v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 251 (QL) (TD); Grinevich v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 444 (QL) (TD); Feradov v Canada (Citizenship and Immigration), 2007 FC 101 at para 18 [Feradov].

3. See e.g. Maldonado v Canada (Minister of Employment and Immigration), [1979] FCJ No 248 (QL) (FCA) at para 5 [Maldonado]. For discussion, see also Hilary Evans Cameron, Refugee Law's Fact-Finding Crisis: Truth, Risk, and the Wrong Mistake (Cambridge University Press, 2018), ch 4 [Evans Cameron, Fact-Finding].

4. Evans Cameron, Fact-Finding, supra note 3.

5. Maldonado, supra note 3 at para 5. For a discussion, see Evans Cameron, Fact-Finding, supra note 3 at 90-93.

6. This study adds to a body of literature that follows a similar approach in trying to guard preferentially against this kind of mistake. See e.g. Douglas McDonald-Norman, "No One to Bear Witness: Country Information and LGBTQ Asylum Seekers" (2017) 33 Refuge 88; Zoe Given-Wilson, Jane Herlihy & Matthew Hodes, "Telling the Story: A Psychological Review on Assessing Adolescents' Asylum Claims" (2016) 57 Can Psychology 265; Hannah Rogers, Simone Fox & Jane Herlihy, "The Importance of Looking Credible: The Impact of the Behavioural Sequelae of Post-Traumatic Stress Disorder on the Credibility of Asylum Seekers" (2015) 21 Psychology Crime & L 139; Jane Herlihy, Laura Jobson & Stuart Turner, "Just Tell Us What Happened to You: Autobiographical Memory and Seeking Asylum" (2012) 26 Applied Cognitive Psychology 661; Hilary Evans Cameron, "Refugee Status Determination and the Limits of Memory" (2010) 22 Intl J Refugee L 469 [Evans Cameron, "Limits of Memory"]; Hilary Evans Cameron, "Risk and the Reasonable Refugee: Exploring a Key Credibility Inference in Canadian Refugee Status Rejections" [forthcoming in Intl J Refugee L]. For more on this body of literature, see note 8, below. In the criminal law sphere, a similar philosophy underlies The Innocence Project, for example, which "exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice," through an exclusive focus on wrongful convictions, not wrongful acquittals. Innocence Project, "About," online: innocenceproject.org/about [perma.cc/FH27-6A8B].

7. See e.g. Carol Bohmer & Amy Shuman, Rejecting Refugees: Political Asylum in the 21st Century (Routledge, 2008); Rebecca Hamlin, Let Me Be A Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia (Oxford University Press, 2014); Jaya Ramji-Nogales, Andrew I Schoenholtz & Philip G Schrag, eds, Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (New York University Press, 2009); Herlihy, Jobson & Turner, supra note 6; Jane Herlihy, Kate Gleeson & Stuart Turner, "What Assumptions About Human Behaviour Underlie Asylum Judgments?" (2010) 22 Intl J Refugee L 351; Jenni Millbank, "'The Ring of Truth': A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations" (2009) 21 Intl J Refugee L 1; Efrat Arbel, Catherine Dauvergne & Jenni Millbank, Gender in Refugee Law: From the Margins to the Centre (Routledge, 2014); Thomas Spijkerboer, Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum (Routledge, 2013); Norman, Steve, "Assessing the Credibility of Refugee Applicants: A Judicial Perspective" (2007) 19 Intl J Refugee L 273.

8. In addition to the literature cited above, lie detection researchers suggest that credibility decisions are often quick, intuitive judgements and that adjudicators may have little insight into the factors that have led them to their conclusions. If so, in providing written reasons, adjudicators may be engaging in a process of post hoc justification, consciously or otherwise, and an inference that they have identified as supporting their conclusion may not, in fact, have influenced their thinking. For a review, see Maria Hartwig & Pär Anders Granhag, "Exploring the Nature and Origin of Beliefs about Deception: Implicit and Explicit Knowledge among Lay People and Presumed Experts" in Pär Anders Granhag, Aldert Vrij & Bruno Verschuere, eds, Detecting Deception: Current Challenges and Cognitive Approaches (John Wiley & Sons, 2015) 125. See also Maria Hartwig & Charles F Bond Jr, "Why Do Lie-Catchers Fail? A Lens Model Meta-Analysis of Human Lie Judgments" (2011) 137 Psychology Bull 643; Judee K Burgoon, J Pete Blair & Renee E Strom, "Cognitive Biases and Nonverbal Cue Availability in Detecting Deception" (2008) 34 Human Communication Research 572 https://doi.org/10.1111/j.1468-2958.2008.00333.x; Marc-André Reinhard, "Need for Cognition and the Process of Lie Detection" (2010) 46 J Experimental Soc Psychology 961. See Sean Rehaag & Hilary Evans Cameron, "Experimenting with Credibility in Refugee Adjudication: Gaydar" (2020) 9 Can J Human Rights 1 (for empirical confirmation of this effect in law students acting as adjudicators in simulated refugee hearings).

9. Many psychologists, for example, have contributed to the conversation about what kinds of information adjudicators can reliably expect truthful refugee claimants to include in their narratives under different circumstances. See e.g. Jane Herlihy & Stuart Turner, "Untested Assumptions: Psychological Research and Credibility Assessment in Legal Decision-Making" (2015) 6 Eur J Psychotraumatology 27380 [Herlihy & Turner, "Untested Assumptions"]; Jane Herlihy & Stuart W Turner, "The Psychology of Seeking Protection" (2009) 21 Intl J Refugee L 171 [Herlihy & Turner, "Seeking Protection"]; Herlihy, Jobson & Turner, supra note 6; Given-Wilson, Herlihy & Hodes, supra note 6; Rogers, Fox & Herlihy, supra note 6. In addition, a significant body of literature has explored, in particular, why sexual minority claimants and claimants who have suffered sexual violence may delay in disclosing their orientation or experiences. See e.g. Arbel, Dauvergne & Millbank, supra note 7; Millbank, supra note 7; Spijkerboer, supra note 7. Indeed, the Board's Guidelines recognize that "[i]ndividuals are often reluctant to disclose their experiences of sexual violence because of feelings of shame, helplessness, shock and/or fear that by doing so they may be seen to have dishonoured their families and may be ostracized by their communities." "Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution" (2022), online: Immigration and Refugee Board of Canada irb.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx [perma.cc/XNA4-PFWL]. The Guidelines also recognize that when a person fails to disclose "significant events or details" relating to their sexual orientation, there may be "cultural, psychological or other barriers that may reasonably explain the omission." See "Chairperson Guidelines 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics" (2021), online: irb.gc.ca/en/legal-policy/policies/Pages/GuideDir09.aspx [perma.cc/QND5-9BMH] ["Chairperson Guideline 9"]. See also Harry v Canada (Citizenship and Immigration), 2019 FC 85 at paras 33-34; Odia v Canada (Citizenship and Immigration), 2014 FC 663.

10. The Immigration and Refugee Board is an independent quasi-judicial tribunal. See "Immigration and Refugee Board of Canada," online: irb-cisr.gc.ca/en/Pages/index.aspx. Redacted copies of its decisions, obtained pursuant to a request under the Access to Information Act, become a matter of public record. See RSC 1985, c A-1.

11. IRPA, supra note 1, s 98. Claimants may be excluded from protection if they have status in a safe third country or if they have committed certain kinds of crimes. The theoretical basis for distinguishing this category of decisions in a study of credibility judgments is that if assessing credibility comes down to resolving doubt, and resolving doubt comes down to deciding which kind of mistake to prefer, there are unique normative considerations at stake in deciding this question of error preference in the context of findings about a claimant's exclusion or identity that do not arise when the sole question is whether they are at risk. See Evans Cameron, Fact-Finding, supra note 3.

12. All citations from French-language decisions in this study appear in English, translated by the author.

13. See e.g. Jason D Rivera, "When Attaining the Best Sample is Out of Reach: Nonprobability Alternatives When Engaging in Public Administration Research" (2019) 25 J Public Affairs Education 314. https://doi.org/10.1080/15236803.2018.1429821

14. "Refugee Protection Claims (New System) by Country of Alleged Persecution - 2021," online: Immigration and Refugee Board of Canada irb.gc.ca/en/statistics/protection/Pages/RPDStat2021.aspx [perma.cc/PJM8-XD9F]. The last full year for which this information is available as of the time of writing is 2021.

15. Immigration and Refugee Board of Canada, "Claims by Country of Alleged Persecution - 2022 (January to June)" (last modified 1 September 2022), online: Immigration and Refugee Board of Canada irb.gc.ca/en/statistics/protection/Pages/RPDStat2022.aspx [perma.cc/2ABL-AGJ4].

16. Sean Rehaag, "2019 Refugee Claim Data and IRB Member Recognition Rates" (12 August 2020), online: Refugee Law Lab www.refugeelab.ca/refugee-claim-data-2019 [perma.cc/Y9ZU-C63L] [Rehaag, "2019 Refugee Claim Data"]. This is the last full year for which this information is available.

17. Ibid.

18. Statistics from the Government of Canada suggest that in 2020, the last year for which this data is available, 56 per cent of refugee claims were made by male claimants and 44 per cent by female claimants. See Sean Fraser, Immigration, Refugees and Citizenship Canada, "Gender-based Analysis Plus" (1 February 2022), online: Government of Canada canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/departmental-performance-reports/2021/gender-based-analysis-plus.html [perma.cc/ZA5K-4X5B]. This data does not record how many claimants from each category were accepted or rejected.

19. Nvivo Qualitative Data Analysis Software, Version 12 (QSR International Pty Ltd, 2018).

20. See Evans Cameron, Fact-Finding, supra note 3.

21. See Nvivo Qualitative Data Analysis Software, supra note 19.

22. Audrey Macklin, "Truth and Consequences: Credibility Determination in the Refugee Context" (Paper for the International Association of Refugee Law Judges, delivered at the conference "The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary," October 1998) at 158, online (pdf): refugeestudies.org/UNHCR/97%20-%20Truth%20and%20Consequences.%20Credibility%20Determination%20in%20Refugee%20Context.%20by%20Audrey%20Macklin.pdf [perma.cc/AHS7-F2MD]; Millbank, supra note 7; Anthea Vogl, "Telling Stories from Start to Finish: Exploring the Demand for Narrative in Refugee Testimony" (2013) 22 Griffith L Rev 63; James A Sweeney, "Credibility, Proof and Refugee Law" (2009) 21 Intl J Refugee L 700; Michael Kagan, "Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination" (2003) 17 Geo Immigr LJ 367.

23. It should be noted that the fact that this finding ended the adjudicator's analysis in a given case does not necessarily imply that they would otherwise have granted the claim, however. Had they believed the claimant, the adjudicator may, in theory, have rejected the claim on other grounds.

24. See e.g. Chris Barker, Nancy Pistrang & Robert Elliott, Research Methods in Clinical Psychology: An Introduction for Students and Practitioners, 2nd ed (John Wiley & Sons Ltd, 2002).

25. This data can be accessed online. See Hilary Evans Cameron, "Sin of Omission - Coded Data and List and Description of Immigration and Refugee Board files in Data Set" (8 August 2022), online: Toronto Metropolitan University . To facilitate review, this study refers to the decisions throughout using both the Board's file number and, in brackets, the corresponding project reference number.

26. Sean Rehaag, "2016 Refugee Claim Data and IRB Member Recognition Rates" (8 March 2017) at para 2.6 ("Data"), online: Canadian Council for Refugees [perma.cc/5V75-F876]. In an earlier study, Innessa Colaiacovo found significant differences in the grant rates in the Board's Toronto, Montreal, and Vancouver offices in the 2006-2011 period (51.10 per cent, 36.30 per cent, and 39.60 per cent, respectively). "Not Just the Facts: Adjudicator Bias and Decisions of the Immigration and Refugee Board of Canada (2006-2011)" (2013) 1 J Migration & Human Security 122 at 128. Rehaag, however, found that for the 2006 year, the grant rates for the three offices were nearly identical (54.29 per cent, 54.43 per cent, 54.38 per cent). Sean Rehaag, "Troubling Patterns in Canadian Refugee Adjudication" (2008) 39 Ottawa L Rev 335 at 350-51.

27. The adjudicators relied on these inferences in 48 per cent of the decisions for single female claimants (33/63) and 46 per cent of the decisions for single male claimants (63/138). This study analyzed the genders of only the single claimants as the decisions did not always specify the genders of the dependant claimants among claimant families.

28. The adjudicators relied on these inferences in 48 per cent of the decisions for single claimants (97/202) compared with 58 per cent (30/57) for multiple claimants.

29. See e.g. Shaiq v Canada (Citizenship and Immigration), 2009 FC 149 at para 77; Kumara v Canada (Citizenship and Immigration), 2010 FC 1172 at paras 3-4; Fatih v Canada (Citizenship and Immigration), 2012 FC 857 at para 66; Adewoyin v Canada (Minister of Citizenship and Immigration), 2004 FC 905 at para 18.

30. See e.g. (157) MB5-05344; (062) MB5-03637; (017) MB4-01062 MB4-01072; (240) MB6-00092 MB6-00093 MB6-00094; (037) MB5-02465 MB5-02473 MB5-02476 MB5-02477; (069) MB5-03810 MB5-03811 MB5-03812 MB5-03813 MB5-03882; (103) MB5-04560 MB5-04575 MB5-04576 MB5-04626; (121) MB5-04880 MB5-04884 MB5-04887 MB5-04888 MB5-04889.

31. (070) MB5-03835. The decision reads: "The panel did not ask the claimant why she did not update her BOC to provide the most recent information about her family, so the panel does not know why she has not done so. However, the panel would have expected her to do so, considering the importance of the information" (ibid).

32. (177) MB5-05595. See also (303) MB6-01002.

33. See "Chairperson Guideline 9," supra note 9.

34. Ibid at para 7.7.

35. See "Assessment of Credibility in Claims for Refugee Protection" (31 December 2020), online: Immigration and Refugee Board of Canada irb.gc.ca/en/legal-policy/legal-concepts/Pages/Credib.aspx [perma.cc/FC23-D4XE] ["Assessment of Credibility," 2020].

36. Krista Daley, "Assessment of Credibility in Claims for Refugee Protection" (31 January 2004), online: refworld.org/docid/4638af792.html [perma.cc/K3U6-QWRN].

37. Ibid at 27-28.

38. "Assessment of Credibility," 2020, supra note 35 at 2-26.

39. In just over 1 per cent of these decisions that found deception, the adjudicator concludes that the claimant's claim is "manifestly unfounded" per section 107.1 of the IRPA (3/259). In 3 per cent, the adjudicator concludes that the claimant's claim has "no credible basis" per section 107(2) of the IRPA (8/259 decisions). In two cases (coded as "no finding of deception"), the adjudicator found that the claimant was not credible because they were delusional, not because they had intended to deceive the Board. (130) MB5-05013; (212) MB5-05930.

40. In three cases, it was clear that the claimant was not represented. (040) MB5-02642; (051) MB5-03167; (174) MB5-05577. In a fourth case, the adjudicator delivered their reasons orally and these were subsequently transcribed. (170) MB5-05539. At the top of the first page of the transcription, the transcriber has indicated "no counsel recorded." It is not clear whether no counsel participated in this hearing, or whether counsel participated but their information was not recorded.

41. "Claimant's Guide (Print Version)" (2018), online: Immigration and Refugee Board irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx#who [perma.cc/LBU3-NFF4].

42. See e.g. Bouarif v Canada (Immigration, Refugees and Citizenship), 2020 FC 49 at para 14; Martinez Cabrales v Canada (Citizenship and Immigration), 2019 FC 1178 at para 67; Chen v Canada (Citizenship and Immigration), 2002 FC 969 at para 10.

43. See e.g. Kanawati v Canada (Citizenship and Immigration), 2020 FC 12 at paras 19-20; Koky v Canada (Citizenship and Immigration), 2014 FC 388 at para 20.

44. (229) MB6-00025.

45. (023) MB5-01644.

46. (043) MB5-02780.

47. (089) MB5-04185 MB5-04194 MB5-04227. See also (225) MB5-06097.

48. See "Chairperson Guideline 9," supra note 9.

49. (260) MB6-00280.

50. See e.g. (051) MB5-03167; (028) MB5-01890; (127) MB5-04955; (040) MB5-02642; (218) MB5-06013 MB5-06021; (076) MB5-03978; (132) MB5-05046; (228) MB6-00007.

51. (218) MB5-06013 MB5-06021. See also (166) MB5-05445; (044) MB5-02847 MB5-02873; (053) MB5-03345.

52. (011) MB5-00821.

53. (127) MB5-04955. See also (132) MB5-05046; (028) MB5-01890; (247) MB6-00150 MB6-00169; (040) MB5-02642; (174) MB5-05577; (132) MB5-05046; (127) MB5-04955; (098) MB5-04494; (172) MB5-05549 MB5-05547 MB5-05548; (114) MB5-04747; (132) MB5-05046; (174) MB5-05577; (262) MB6-00319.

54. (043) MB5-02780.

55. (125) MB5-04937. See also (193) MB5-05725.

56. (296) MB6-00923. See also (228) MB6-00007.

57. See e.g. (191) MB5-05699; (032) MB5-02101; (203) MB5-05817. See also (132) MB5-05046; (071) MB5-03849; (119) MB5-04836.

58. (191) MB5-05699.

59. (032) MB5-02101. See also (203) MB5-05817; (132) MB5-05046.

60. (172) MB5-05549 MB5-05547 MB5-05548.

61. Ibid. See also (050) MB5-03148 MB5-03169.

62. (261) MB6-00281. See also (106) MB5-04623.

63. (118) MB5-04834.

64. (099) MB5-04499.

65. (177) MB5-05595.

66. (245) MB6-00138.

67. (071) MB5-03849; (215) MB5-05974.

68. (175) MB5-05581.

69. See e.g. (174) MB5-05577; (198) MB5-05776.

70. (138) MB5-05106 MB5-05107 MB5-05108.

71. (097) MB5-04436. See also (029) MB5-01944; (175) MB5-05581.

72. (182) MB5-05644.

73. (197) MB5-05759. See also (025) MB5-01817; (260) MB6-00280; (204) MB5-05818; (303) MB6-01002; (246) MB6-00149.

74. (107) MB5-04646. See also (119) MB5-04836; (303) MB6-01002.

75. (166) MB5-05445.

76. (051) MB5-03167.

77. (064) MB5-03662. See also (127) MB5-04955.

78. (101) MB5-04533.

79. (114) MB5-04747. See also (075) MB5-03948 MB5-03951; (071) MB5-03849; (051) MB5-03167; (123) MB5-04934; (127) MB5-04955.

80. (138) MB5-05106 MB5-05107 MB5-05108. The idea that "a person's first story is usually the most genuine, and therefore the one to be most believed," has been described as "trite law" by the Federal Court. Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 13; Navaratnam v Canada (Citizenship and Immigration), 2011 FC 856 at para 15. See also Chavez v Canada (Citizenship and Immigration), 2007 FC 10 at para 14; Mohacsi v Canada (Minister of Citizenship and Immigration), [2003] 4 FC 771 at para 21; Rathinasigngam v Canada (Minister of Citizenship and Immigration), 2006 FC 988 at para 21. In one recent decision, the Canadian Refugee Protection Division applied this rationale to a claimant's omission of potentially helpful information from her narrative. RPD File TB7-20134, TB8-06996, [2019] RPDD No 60 (QL). As it has been elaborated in the jurisprudence, however, this "first story" rationale does not sit squarely with the "deceptive addition" inference. It arises in cases in which the claimant has made an initial statement, typically at the port of entry, that included unhelpful or incriminating information, and then attempts in their narrative to walk it back. See e.g. RAD File No TB5-03664, [2015] RADD No 1761 (QL) at para 38. The Refugee Appeal Division said, "The Federal Court has stated that a person's first account of events is usually more reliable and can be considered more trustworthy (especially if it is incriminating)." In these contexts, the Federal Court suggests that the initial unhelpful or incriminating statement should be preferred because the claimant gave that statement "spontaneously." See e.g. Ishaku v Canada (Minister of Citizenship and Immigration), 2011 FC 44 at para 52; Canada (Minister of Citizenship and Immigration) v GBH, [2010] IDD No 7 (QL) at para 38 (IRB, Immigration Division). In the context of omissions from the narrative, on the contrary, the written narrative is less spontaneous than the subsequent oral testimony, and here the inference is not that this initial statement is "to be believed," but rather that the addition of new information calls the entire claim into question.

81. (228) MB6-00007. See also (125) MB5-04937.

82. (230) MB6-00027. See also (119) MB5-04836; (043) MB5-02780.

83. (043) MB5-02780.

84. (245) MB6-00138. See also (075) MB5-03948 MB5-03951; (076) MB5-03978; (268) MB6-00432.

85. (097) MB5-04436; (075) MB5-03948 MB5-03951. See also (268) MB6-00432; (287) MB6-00696.

86. (029) MB5-01944.

87. (064) MB5-03662. See also (099) MB5-04499.

88. (145) MB5-0518. See also (202) MB5-05813 MB5-05814 MB5-05815 MB5-05816; (228) MB6-00007; (099) MB5-04499; (144) MB5-05180; (165) MB5-05404; (229) MB6-00025.

89. (269) MB6-00446. See also (283) MB6-00618. See generally (132) MB5-05046; (144) MB5-05180; (145) MB5-05181; (165) MB5-05404; (229) MB6-00025; (228) MB6-00007; (145) MB5-05181; (119) MB5-04836.

90. (044) MB5-02847 MB5-02873; (126) MB5-04938.

91. (100) MB5-04531.

92. The BOC form requires claimants to declare that the information that they have provided is "complete, true and correct." BOC Form, supra note 1. At the beginning of the hearing, the claimants again affirm that the information in their narrative is "true, complete and correct." See e.g. (204) MB5-05818; (284) MB6-00647 MB6-00654. See also (230) MB6-00027; (267) MB6-00402; (309) MB6-01082; (025) MB5-01817; (125) MB5-04937; (100) MB5-04531. (182) MB5-05644. See also (197) MB5-05759; (255) MB6-00195; (284) MB6-00647 MB6-00647 MB6-00654. See also (230) MB6-00027; (267) MB6-00402; (309) MB6-01082; (025) MB5-01817; (125) MB5-04937; (100) MB5-04531.

93. (182) MB5-05644. See also (197) MB5-05759; (255) MB6-00195; (284) MB6-00647 MB6-00654; (247) MB6-00150 MB6-00169.

94. (255) MB6-00195.

95. (284) MB6-00647 MB6-00654. See also (006) MB4-05323 MB4-05324 MB4-05326.

96. After the general instruction, the form asks, "Have you or your family ever been harmed, mistreated or threatened by any person or group?" Below this question, the instruction reads, "If 'YES' explain in detail" and lists five follow-up questions, including "What happened to you and your family" and "Whether persons in situations similar to yours experienced such harm, mistreatment or threats." BOC Form, supra note 1.

97. (089) MB5-04185 MB5-04194 MB5-04227; (132) MB5-05046; (191) MB5-05699.

98. (032) MB5-02101.

99. (283) MB6-00618. See also (229) MB6-00025; (202) MB5-05813; (228) MB6-00007.

100. (202) MB5-05813. See also (283) MB6-00618; (229) MB6-00025.

101. (051) MB5-03167; (022) MB5-01478; (106) MB5-04623; (132) MB5-05046; (247) MB6-00150 MB6-00169; (309) MB6-01082; (269) MB6-00446; (303) MB6-01002.

102. See e.g. (051) MB5-03167; (246) MB6-00149.

103. See e.g. (132) MB5-05046; (106) MB5-04623; (247) MB6-00150 MB6-00169.

104. See (309) MB6-01082; (026) MB5-01848; (132) MB5-05046.

105. See e.g. (309) MB6-01082; (026) MB5-01848; (242) MB6-00113 MB6-00118; (022) MB5-01478; (106) MB5-04623; (028) MB5-01890.

106. See (215) MB5-05974.

107. See (182) MB5-05644. See also (170) MB5-05539; (237) MB6-00066; (229) MB6-00025.

108. See (029) MB5-01944; (011) MB5-00821; (106) MB5-04623; (089) MB5-04185 MB5-04194 MB5-04227; (043) MB5-02780.

109. (089) MB5-04185 MB5-04194 MB5-04227.

110. See (106) MB5-04623.

111. (043) MB5-02780. See also (228) MB6-00007; (011) MB5-00821; (182) MB5-05644; (228) MB6-00007; (247) MB6-00150 MB6-00169; (307) MB6-01030.

112. (218) MB5-06013 MB5-06021.

113. (203) MB5-05817; (039) MB5-02605 MB5-02692; (177) MB5-05595; (265) MB6-00393.

114. (099) MB5-04499. See also (145) MB5-05181.

115. See (309) MB6-01082.

116. (106) MB5-04623.

117. (261) MB6-00281. See also (106) MB5-04632.

118. (089) MB5-04194 MB5-04227. See also (225) MB5-06097.

119. (053) MB5-03345.

120. (250) MB6-00156.

121. See (260) MB6-00280.

122. See Part III(B)(3)(iii)(a), above.

123. BOC Form, supra note 1.

124. Ibid.

125. (126) MB5-04938.

126. See (296) MB6-00923.

127. See (191) MB5-05699.

128. See (106) MB5-04623.

129. See (261) MB6-00281.

130. See e.g. James C Hathaway & Michelle Foster, The Law of Refugee Status, 2nd ed (Cambridge University Press, 2014).

131. Talukder v Canada (Citizenship and Immigration), 2007 FC 668 at para 20.

132. BOC Form, supra note 1.

133. Ibid.

134. See Part III(B)(3)(iv), above. Similarly, if their personal identities are irrelevant, "two of my creditors have sworn to kill me" and "two of my creditors named X and Y have sworn to kill me" are functionally identical from a risk assessment perspective. See e.g. (182) MB5-05644. See also (170) MB5-05539; (237) MB6-00066; (229) MB6-00025. The fact that the form instructs claimants to include "dates, names and places, wherever possible" hardly signals that this is a foundational legal requirement for a preliminary statement before a full oral hearing. It does nothing to make clear that these names are so important that their omission can lead the adjudicator to conclude that the claimant is lying, that this kind of omission, in fact, can be "perhaps the major point where this asylum claim hits a stumbling block." (229) MB6-00025.

135. (191) MB5-05699.

136. Consider coming home from a business trip abroad and filling out a customs form. The form asks, "Have you or your family visited a farm within the last 14 days?" You happen to know that while you were away, your partner and children visited a local farm. You would presumably check the "no" box regardless. You would understand that "your family" here refers to the family members with whom you are travelling. Since you are travelling alone, these words simply do not apply to you.

137. (032) MB5-02101.

138. See Part IV(B)(3), below.

139. BOC Form, supra note 1 [emphasis added].

140. (309) MB6-01082.

141. See (172) MB5-05549 MB5-05547 MB5-05548.

142. (283) MB6-00618. See Part III(B)(3)(iii)(b), above.

143. Indeed, the difference that such guidance can make is profound. In Canada as elsewhere, "counsel is a major factor affecting outcomes in refugee determinations." See Sean Rehaag, "The Role of Counsel in Canada's Refugee Determination System: An Empirical Assessment" (2011) 49 Osgoode Hall LJ 71 at 92 https://doi.org/10.60082/2817-5069.1073

Craig Damian Smith, Sean Rehaag & Trevor CW Farrow, Access to Justice for Refugees: How Legal Aid and Quality of Counsel Impact Fairness and Efficiency in Canada's Asylum System (Canada Excellence Research Chair in Migration and Integration, Centre for Refugee Studies & Canadian Forum on Civil Justice, 8 December 2021), online: SSRN ssrn.com/abstract=3980954 [perma.cc/QW9T-DAHW]. In the United States, "whether an asylum seeker is represented in court is the single most important factor affecting the outcome of her case." See Ramji-Nogales, Schoenholtz & Schrag, supra note 7 at 45. I have argued that this is in large part because counsel may help the claimant to anticipate the adjudicator's credibility concerns. See Evans Cameron, Fact-Finding, supra note 3 at 199-202.

144. Those claiming at a port of entry typically have just over two weeks to submit their BOC form ("not later than 15 calendar days after the day that the Officer refers your claim to the Refugee Protection Division"). BOC Form, supra note 1.

145. Feradov, supra note 2 at para 18.

146. A recent case study of Roma claims made this brutally clear. See Sean Rehaag, Julianna Beaudoin & Jennifer Danch, "No Refuge: Hungarian Romani Refugee Claimants in Canada" (2015) 52 Osgoode Hall LJ 705. The lawyers who represented a large number of Roma claimants in Canada had markedly lower success rates than those who represented fewer, and among the many corners these "experienced counsel" cut, the most concerning "related to the claimant narratives" (ibid at 755). Among other things, this study found credible evidence that these lawyers prepared "brief boilerplate narratives that failed to address central aspects of the claims....frequently left claimants to prepare their own narratives without adequate instruction...and failed to review narratives with clients prior to submitting them" (ibid at 755-56). Moreover, from their own first-hand review of a quantity of files, these researchers note that "many of these narratives appear to have been prepared with complete disregard for what would need to be established at a refugee hearing in order for a claimant to succeed"; "contain allegations that are vague and incomplete"; and, despite having been prepared by "experienced counsel," "were inadequate to the task that any experienced counsel should have known would be central to success in the claim" (ibid at 766).

147. See Macklin, supra note 22; Millbank, supra note 7; Vogl, supra note 22; Sweeney, supra note 22; Kagan, supra note 22.

148. To communicate its expectations effectively, the Board must change both the content and form of its materials. Information as important as this should not be conveyed to a lay audience in dense paragraphs of text in small font, using composite sentences such as this one: "If the Officer or the IRB, as the case may be, has not received your completed Basis of Claim Form (BOC Form) by the dates mentioned above, the IRB will have a special hearing and may decide to declare your claim abandoned which means you would not be allowed to continue with your claim." BOC Form, supra note 1. See e.g. Christine Mowat, A Plain-Language Handbook for Legal Writers, 2nd ed (Carswell, 2015); Martin Cutts, Oxford Guide to Plain English, 5th ed (Oxford University Press, 2020) at 253. For an example of a tribunal effectively communicating legal information in plain language, see "Social Security Tribunal of Canada," online: sst-tss.gc.ca/en [perma.cc/GMU8-2XRK].

149. Evans Cameron, Fact-Finding, supra note 3 at 108.

150. Ibid, ch 2.

151. See e.g. Angela Wai et al, "Accuracy of Patient Self-administered Medical History Forms in the Emergency Department" (2020) 38 Am J Emergency Medicine 50 https://doi.org/10.1016/j.ajem.2019.04.016; Manuela M Bergmann et al, "Agreement of Self-Reported Medical History: Comparison of an In-Person Interview with a Self-Administered Questionnaire" (2004) 19 Eur J Epidemiology 411 https://doi.org/10.1023/B:EJEP.0000027350.85974.47; Gustav Kjellsson, Philip Clarke & Ulf-G Gerdtham, "Forgetting to Remember or Remembering to Forget: A Study of the Recall Period Length in Health Care Survey Questions" (2014) 35 J Health Economics 34 https://doi.org/10.1016/j.jhealeco.2014.01.007; Natasha Kareem Brusco & Jennifer J Watts, "Empirical Evidence of Recall Bias for Primary Health Care Visits" (2015) 15 BMC Health Services Research 381 https://doi.org/10.1186/s12913-015-1039-1; Matthias Hunger et al, "Official Statistics and Claims Data Records Indicate Non-Response and Recall Bias Within Survey-Based Estimates of Health Care Utilization in the Older Population" (2013) 13 BMC Health Services Research 1. See generally Roger Tourangeau, Lance J Rips & Kenneth Rasinski, The Psychology of Survey Response (Cambridge University Press, 2000). https://doi.org/10.1186/1472-6963-13-1

152. Online: merriam-webster.com/dictionary/omission [perma.cc/2P97-Y225].

153. For discussion, see Evans Cameron, Fact-Finding, supra note 3 at 199-202.

154. (043) MB5-02780.

155. See Herlihy & Turner, "Untested Assumptions," supra note 9; Herlihy & Turner, "Seeking Protection," supra note 9; Herlihy, Jobson & Turner, supra note 6; Given-Wilson, Herlihy & Hodes, supra note 6; Rogers, Fox & Herlihy, supra note 6; Arbel, Dauvergne & Millbank, supra note 7; Millbank, supra note 7; Spijkerboer, supra note 7.

156. See Wai et al, supra note 151; Bergmann et al, supra note 151; Kjellsson, Clarke & Gerdtham, supra note 151; Brusco & Watts, supra note 151; Hunger et al, supra note 151.

157. For discussion, see Hilary Evans Cameron, "Limits of Memory," supra note 6 at 507-508.

158. Ibid at 505-508.

159. (218) MB5-06013 MB5-06021.

160. For discussion, see Evans Cameron, Fact-Finding, supra note 3 at 202.

161. Ibid at 201, citing Maria Hartwig, Pär Anders Granhag & Leif A Strömwall, "Guilty and Innocent Suspects' Strategies During Police Interrogations" (2007) 13 Psychology Crime & L 213 at 220. See also Thomas Gilovich, Kenneth Savitsky & Victoria Husted Medvec, "The Illusion of Transparency: Biased Assessments of Others' Ability to Read One's Emotional States" (1998) 75 J Personality & Social Psychology 332 https://doi.org/10.1080/10683160600750264; Saul M Kassin & Rebecca J Norwick, "Why People Waive Their Miranda Rights: The Power of Innocence" (2004) 28 L & Human Behavior 211. https://doi.org/10.1023/B:LAHU.0000022323.74584.f5

162. Miriam H Marton, "Beyond Expert Witnessing: Interdisciplinary Practice in Representing Rape Survivors in Asylum Cases" in Benjamin N Lawrance & Galya Ruffer, eds, Adjudicating Refugee and Asylum Status: The Role of Witness, Expertise, and Testimony (Cambridge University Press, 2015) 102 at 104, cited in Evans Cameron, Fact-Finding, supra note 3 at 202. https://doi.org/10.1017/CBO9781107706460.007

163. In several decisions, for example, the Board drew a negative inference from the omission of details about the claimant's previous same-sex relationships. In one, the claimant stressed repeatedly that he had not felt comfortable discussing the details of his sexual history with his landlady. The adjudicator notes this explanation on four occasions in the decision, but does not once address it, to explain why this was not a relevant consideration. (260) MB6-00280. The Court has overturned several decisions in which adjudicators had relied on the claimant's omission of information about their previous same-sex relationships. See Strugar v Canada (Citizenship and Immigration), 2013 FC 880; McKenzie v Canada (Citizenship and Immigration), 2019 FC 555. Significant variances in these bodies' decision making, however, make it difficult to predict how the Appeal Division and the Federal Court will decide cases. See e.g. Sean Rehaag, "Judicial Review of Refugee Determinations: The Luck of the Draw?" (2012) 38 Queen's LJ 30; Rehaag, "2019 Refugee Claim Data," supra note 16.

164. Researchers have for many years noted the "vast disparities" in the grant rates of Canadian refugee status adjudicators. See e.g. Sean Rehaag, "2021 Refugee Claim Data and IRB Member Recognition Rates" (21 October 2022), online: refugeelab.ca/refugee-claim-data-2021 [perma.cc/5W62-SZFQ].

165. See Evans Cameron, Fact-Finding, supra note 3 at 170; Norman, supra note 7 at 274.

166. Evans Cameron, Fact-Finding, supra note 3.

167. See Part IV(D), above.

168. See e.g. "Making Clear When an Answer is an Example or Does Not Tell the Full Story" online: Meet Gary meetgary.ca/12-things-that-have-helped/just-an-example [perma.cc/NQC7-UDE9].

169. See e.g. Mongu v Canada (Solicitor General), [1994] FCJ No 1526 (QL) (TD); Navaratnam v Canada (Minister of Citizenship and Immigration), 2011 FC 586.

170. (039) MB5-02605 MB5-02692. See also (069) MB5-03810 MB5-03811 MB5-03812 MB5-03813 MB5-03882; (125) MB5-04937; (124) MB5-04936; (028) MB5-01890. For other applications of this kind of inference, see generally (254) MB6-00165 MB6-00162 MB6-00167 MB6-00168; (184) MB5-05648 (work history); (269) MB6-00446; (040) MB5-02642; (197) MB5-05759; (075) MB5-03948 MB5-03951; (021) MB5-01313 (detention).