Standard of Proof and Legal Test in Refugee Claims

Noura stepped off the plane in Toronto with hope tucked tightly in her suitcase. She had endured months of fear and uncertainty, fleeing political unrest in Sudan. Now, she faced another challenge: proving she had a well-founded fear of persecution. Like many others, Noura didn’t know whether the immigration authorities would accept her refugee claim. She recalled the standard of proof in refugee claims, but was unsure what it meant to her.

Understanding the standard of proof

The “standard of proof” refers to how convincing the evidence must be to establish a fact in legal decision-making. In refugee claims, this standard governs how decision-makers assess the facts that support a person’s story. However, the standard of proof should not be confused with the legal test that determines whether someone qualifies for refugee protection.

Canadian law uses different standards of proof depending on the legal context. These include:

• Mere suspicion: An unproven hunch or guess, often seen in casual or social contexts or when a CBSA officer decides to search a vehicle.
• Reasonable grounds to believe: A belief based on compelling and credible evidence. This standard is common in enforcement decisions. Moreover, some immigration decisions (e.g., inadmissibility based on criminality) follow this standard.
• Balance of probabilities: The standard used in civil law, meaning something is more likely than not (>50%). Many immigration decisons follow this standard.
• Beyond a reasonable doubt: The highest standard, used in criminal law.

In immigration and refugee law, the standard of proof often rests at the civil level: a balance of probabilities. However, in refugee protection claims, a separate legal test applies to determine the likelihood of persecution.

Standard of proof: factual findings in refugee cases

Before applying the legal test, the Refugee Protection Division (RPD) must decide what facts to accept. To do this, the balance of probabilities is applied. That means the claimant must show it is more likely that the events described happened.

For example, if a claimant says they were arrested twice during protests, they must prove this to the RPD on a balance of probabilities. The Board assesses all available documents, oral testimony, and country conditions to decide if the arrests are more likely than not to have occurred.

This approach was confirmed by the Federal Court in several cases, including Alam and Nageem. In both cases, the court stated that claimants must establish the factual elements of their case using the civil standard of proof also known as on balance of probabilities.

Legal test: serious possibility of persecution

Once the facts are established, the next step is to assess whether these facts show the claimant faces a risk of persecution. This is where the legal test applies.

In Canada, the test for refugee protection under section 96 of the Immigration and Refugee Protection Act is:

“Is there a reasonable chance that persecution would occur if the claimant were returned to their home country?”

This is known as the Adjei test, which was named after a landmark Court of Appeal decision. Courts and tribunals use interchangeable terms to describe this test:

• Reasonable chance
• Serious possibility
• Reasonable possibility
• Good grounds

All these terms carry the same meaning. They describe a threshold lower than the balance of probabilities but higher than a mere possibility. The claimant does not need to prove that persecution is probable; it is only reasonably likely.

Clarifying the distinction

In its guidelines (Chapter 5, section 5.6.3), the IRB warns against confusing the standard of proof with the legal test. The standard of proof applies to establishing whether facts occurred, while the legal test applies to assessing the risk of future persecution based on those facts.

For instance, in Awadh v. Canada, the Federal Court clarified that while the RPD must find facts using the balance of probabilities, it must assess persecution using the serious possibility test. The Court found that the RPD applied the correct legal test when it stated there was “no serious possibility” of persecution.

However, the Court also noted that the RPD failed to properly consider important evidence. Specifically, it did not assess the impact of educational discrimination on the claimant. This failure to conduct a full cumulative analysis of the alleged mistreatment led to the judicial review being granted.

When the wrong test is used

Errors happen when the RPD confuses the standard of proof with the legal test. For example, in Gomez Dominguez, the RAD wrongly applied the balance of probabilities to future risks. The Court stated that such an approach leaves nothing to assess under the serious possibility standard, creating an unreasonable burden on the claimant.

Similarly, in Halder, the RPD concluded there was no serious possibility of persecution because it found it was more likely than not that the claimant’s persecutors would not see them. The Court ruled this was an error. Future risks must be evaluated using the serious possibility test, not the balance of probabilities.

The role of similarly situated individuals

A claimant does not need to show that they personally were persecuted. Evidence that people in similar situations face harm can support the claim. This principle was confirmed in Chan v. Canada, where the Supreme Court stated that persecution of similarly situated individuals is often compelling evidence of risk.

Nonetheless, the claimant must still demonstrate a serious possibility that they would be personally at risk. The Board cannot ignore individualized circumstances. For example, if two people face similar discrimination but one is more outspoken or more visible, their level of risk may differ.

How the standard of proof and legal test work together

In a refugee claim, the decision-maker needs to answer two big questions:

1. Did the things the claimant said actually happen?
2. If yes, do those things show a real risk of future persecution?

These two questions rely on different legal tools:

• The standard of proof helps decide if the claimant’s evidence is believable.
• The legal test helps decide if the claimant faces a real risk of harm in the future.

Think of it this way: the standard of proof is about what happened in the past. The legal test is about what could happen in the future.

Here’s a simple comparison:

So even if the claimant can’t prove they will be harmed again, they may still qualify for protection if there’s a serious possibility of future persecution.

Practical steps for claimants

Understanding the standard of proof and legal test can improve how a refugee claim is prepared. Here are some tips:

• Gather reliable documents: Support each factual claim with credible evidence.
• Explain your unique situation: Show why you are at risk, even if others are not.
• Avoid assumptions: Do not expect the Board to draw conclusions without evidence.
• Use expert reports wisely: Expert opinions can help link personal experiences to broader country conditions.
• Emphasize cumulative harm: Even if one incident is not persecution, several combined might be.

Please note that a strong Basis of Claim and narrative are crucial for every refugee claim in Canada.

Conclusion

Knowing the difference between the standard of proof and the legal test can be the key to a successful refugee claim. Claimants must establish facts on a balance of probabilities. However, they only need to show a serious possibility of persecution to obtain protection.

If you face a refugee hearing or appeal, you should seek help from an experienced immigration consultant or lawyer. Book a consultation with me today to learn how to present your story clearly and legally accurately.

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Disclaimer: This assessment is generated by an automated algorithm and does not constitute official legal advice.