January 22, 2018

Independent and objective evidence of country conditions enough to outweigh credibility concerns?

The Federal Court has reasserted its position that credibility concerns are not necessarily dispositive of a claim for refugee protection under s. 97 of the Immigration and Refugee Protection Act (IRPA). In Lakatos v. Canada (Citizenship and Immigration), 2018 FC 20, the Court found the decision under review to be flawed as the Pre-Removal Risk Assessment Officer (PRRA Officer) had refused the claim based on credibility concerns, despite objective evidence that state protection was not available to the Applicant.

The Applicant was a Hungarian of Roma ethnicity who had left Hungary as a result of her fear of persecution by certain groups. Her claim for protection in Canada was found to have “no credible basis” by the Refugee Protection Division (RPD). A subsequent Pre-Removal Risk Assessment determined that she did not qualify for refugee protection under either s. 96 or 97 of the IRPA.

The Court took issue with the PRRA Officer’s state protection analysis and, in particular, with the avenues of redress identified by the Officer as being available to the Applicant. There was “’independent, credible’ documentary evidence in the record which would overcome a credibility finding and demonstrate that it was objectively unreasonable for the Applicant to seek state protection.” Additionally, the Court noted, as a result of the credibility concerns identified by the RPD, the PRRA Officer had discounted the numerous prior positive findings of persecution of Roma claimants by the Court, the RPD and the Refugee Appeal decision.

In rejecting the Officer’s analysis, the Court noted that, unlike section 96 of the IRPA, which requires that an Applicant demonstrate a “well-founded fear of persecution” and an objective basis for that fear, section 97 is objective in nature. Due to the objective nature of a section 97 claim, “a negative credibility finding does not necessarily affect the analysis of the objective nature of risk […].” This is particularly so when state protection is a live issue, since the failure of a refugee claimant to seek the protection of their state where such protection is reasonably available can defeat their claim. Therefore, as the Court went on to explain,

“[…] simply because the Applicant was not found credible is not automatically dispositive of the s. 97 claim. Where there is “independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim,” credibility findings are not determinative […].”