Standard of proof in immigration to Canada
Immigration officers review thousands of applications every day. They refuse some and approve the others. Nonetheless, how do they review those applications? In this article, I explore the standard of proof in immigration to Canada. Of course, I’ll do my best to simplify the subject as much as possible. Therefore, this is not a legal commentary.
Table of contents
What is the standard of proof?
The standard of proof or threshold of proof means how a person or entity decides on a matter. Here are four specific standards of proof:
- Beyond a reasonable doubt: Criminal courts use this standard. The judge or jury convicts a person only if they believe they have committed the crime beyond a reasonable doubt. Of course, we could expand this strict standard to other aspects of decision-making.
- Balance of probabilities: Civil courts use this standard. As you can imagine, this standard is less rigid than “beyond a reasonable doubt.” Upon analyzing the evidence, you pick a more probable side.
- Reasonable grounds (to believe): This standard is less strict than the “balance of probabilities.” However, it is more stringent than “mere suspicion.”
- Mere suspicion: Public opinion on social media is primarily mere suspicion. People read a headline and conclude the story. Of course, some people investigate the issues before casting their opinion. However, deciding on mere suspicion is generally a common practice on social media.
I sorted the standards of proof from the strictest to the loosest. Of course, the more stringent the threshold of proof, the more robust evidence we need.
The standard of proof in immigration to Canada
The most common standard of proof in immigration cases is the “balance of probabilities.” Here are some examples:
- Temporary resident applications
- Permanent resident applications
- Citizenship applications
- Revocation of citizenship by the minister
- PRRA applications (persons in need of protection)
- Inadmissibility of a permanent resident because of criminal charges outside Canada
- Inadmissibility for any of the following reasons (Ref: ENF 05, page 21):
- Act committed outside Canada – for permanent residents only [A36(1)(c)]
- Inadmissible family member (A42)
- Health grounds (A38)
- Financial grounds (A39)
- Misrepresentation (A40)
- Cessation (A40.1)
- Non-compliance with the Act or the Regulations (A41)
- Fact-finding for H&C applications
Despite this list, there are exceptions in which officers use the standard of reasonableness. Here are some examples:
- The following inadmissibility cases (Ref: ENF 05, page 21):
- Security (A34)
- Violation of human or international rights (A35)
- Criminality (A36) – except for A36(1)(c) for permanent residents
- Organized criminality (A37)
- Some aspects of H&C applications
What is the burden of proof?
The burden of proof means who must present the evidence. Usually, the applicant has the onus to provide convincing evidence. However, if the Minister files against a person, the burden of proof is on the government. The standard of proof is how an officer or an adjudicator reviews the evidence. The burden of proof says who is responsible for presenting the evidence. Therefore, these two are different from each other.
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Al Parsai, MA, DTM, RCIC
Regulated Canadian Immigration Consultant
Ashton College Instructor – Immigration Consulting
Author – 88 Tips on Immigration to Canada
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