Persuasive decisions are decisions that have been identified by a division head as being of persuasive value in developing the jurisprudence of the Refugee Protection Division (RPD) or Refugee Appeal Division (RAD). They are decisions that members are encouraged to rely upon in the interests of consistency and effective decision-making.
I am of the view that the reasons for decision in
TB7-16268 are of persuasive value to members of the
RAD who are presented with Basis of Claim (BoC) forms that bear a striking resemblance to those of unrelated refugee claimants. In TB7-16268, where a similar
BOC is at issue, the
RAD finds the appellant fails to explain the similarities and establish the
BOC narrative as his own. In the absence of a credible narrative, which is foundational to any refugee claim, the
RAD confirms the decision of the
RPD and dismisses the appeal.
RAD's decision in TB7-16268 outlines the steps that can be taken in an analysis of similar
BOC narratives in a transparent and fair manner. It addresses a question of mixed fact and law and establishes that:
- Analysis of a
BOC narrative begins with the
Maldonado principle, namely, that sworn evidence is presumed to be true unless there is reason to doubt its truthfulness;
- This presumption may be displaced by a
BOC narrative that bears striking resemblance to one or more others. Such striking similarity raises concern with regard to the integrity of the claim;
BOC similarities are found similar enough to call the integrity of the claim into question, the burden of proof shifts to the claimant. The claimant must explain the similarities or establish, in whatever way they choose, on a balance of probabilities, that the narrative is their own;
- If the claimant establishes the narrative as their own, on a balance of probabilities, the member goes on to fully consider the merits of the claim;
- If the claimant identifies a new narrative or story, the member would then go on to fully consider the merits of the claim;
- When a claimant fails to establish, on a balance of probabilities, that the
BOC narrative in question is a true representation of their story, the foundation of the claim may be unsubstantiated and the member may, depending on the circumstances, have sufficient basis to reject the claim without having to make additional credibility findings beyond those inherent in the claimant's explanation or testimony relating to the narrative.
Members are encouraged to adopt the reasoning of the persuasive decision when the facts of the case before them are sufficiently similar to those in the persuasive decision.
Signed by Paula Thompson
Acting Deputy Chairperson, Refugee Appeal Division
February 27, 2019