Tutorial: Trauma-

Informed Client Service

and Credibility
Refugee Protection and Trauma-Informed Client Service
Week 6

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 Acknowledgement of Territory

Queen’s University is situated on traditional Anishinaabe and

Haudenosaunee Territory.
To acknowledge this traditional territory is to recognize its longer
history, one predating the establishment of the earliest European
colonies.
It is also to acknowledge this territory’s significance for the Indigenous
peoples who lived, and continue to live, upon it – people whose
practices and spiritualities were tied to the land and continue to
develop in relationship to the territory and its other inhabitants today.
The Kingston Indigenous community continues to reflect the area’s
Anishinaabek and Haudenosaunee roots. There is also a significant
Métis community and there are First Peoples from other Nations across
ADMIN MATTERS OFFICE HOURS
TODAY 2-4 PM
Tutorial Agenda

1. Welcome and Territorial Land Acknowledgement

2. Module 5 Overview and Mini Lecture on Trauma-
Informed Practice
3. Scenarios on Addressing the Needs of Vulnerable Clients
4. Break
5. Mini Lecture on Credibility
6. Case Study on Credibility
7. Wrap-up and Questions
Module 5: Overview

Credibility and trauma-informed service

Rules and guidelines on

• Designated representatives
• Vulnerable persons
• Other claimants who face distinctive challenges in
establishing their claims, such as claims based on
gender, gender-identity, or sexual orientation

Principles for evaluating credibility

What are some characteristics of a trauma-informed
practice?
A trauma-informed practice:
• recognizes the pervasiveness of trauma
• incorporates an understanding of its impact
on individuals and communities
• minimizes retraumatization
• supports healing and resiliency
• addresses the root causes of violence
• is self-reflective and relational (the
relationship as the foundation of healing and
justice work); and
• takes a contextualized approach to
understanding and responding to trauma

Source: Rachel White-Domain, “Trauma-Informed Legal Advocacy: Practice Scenarios” (National Center on Domestic Violence, Trauma & Mental Health,
2013)
Principles of Trauma-Informed Legal
Advocacy
White-Domain, “Trauma-Informed Legal
Advocacy”
• Link between trauma, memory and trust building
• Strategies to minimize the impact of traumatic
triggers
• Reflective practice techniques – Responding to
frustration and anger
• Preparing for hearing – a tour, mock hearings, MH
treatment, psych assessments

Biederman and Molina “Grounding Tool”

• Grounding techniques “…grounding techniques help him or her step out of the
movie theater into the daylight...” (HHS)
Vulnerable Persons Applications – Guideline
8
2.1 For the purposes of this guideline, vulnerable
persons are individuals whose ability to present their
cases before the IRB is severely impaired. Such
persons may include, but would not be limited to:
• the mentally ill
• minors
• the elderly
• victims of torture
• survivors of genocide and crimes against humanity
• women who have suffered gender-related
persecution
• and individuals who have been victims of
persecution based on sexual orientation and
gender identity

IRB, Chairperson's Guideline 8: Procedures with respect to Vulnerable Persons

Appearing before the IRB (December 15, 2012). Formatting added.
Vulnerable Persons Applications –
Guideline 8
2.3 In all cases, the IRB takes steps to ensure the
fairness of the proceedings.

This guideline addresses difficulties that go beyond

those that are common to most persons appearing
before the IRB.

It is intended to apply to individuals who face particular

difficulty and who require special consideration in the
procedural handling of their cases.

It applies to the more severe cases of vulnerability.

Vulnerable Persons Applications –
Guideline 8
Bring a written or oral application
before the Board for your client to
be recognized Gender of board
member
Frequent breaks

Provide the evidence supporting

your assertion that the client
Support persons Order of
should be recognized in the room questioning
• Psychological/psychiatric evidence is crucial

Alternative Not questioning

methods for about certain
obtaining aspects of the
Indicate the specific testimony claim
accommodations that your client
requires
Designated Representatives – RAD
rules

Continuation of designation Duty of counsel to notify

• 23 (1) If the Refugee Protection Division • 23 (2) If the Refugee Protection Division did not
designated a representative for the person who is designate a representative for the person who is
the subject of the appeal in the proceedings the subject of the appeal and counsel for a party
relating to the decision being appealed, the believes that the Division should designate a
representative is deemed to have been representative for the person because the person
designated by the Division, unless the Division is under 18 years of age or is unable to appreciate
orders otherwise. the nature of the proceedings, counsel must
without delay notify the Division in writing.
Designated Representatives – RPD
rules
(10) The responsibilities of a designated representative include:
• (a)deciding whether to retain counsel and, if counsel is
retained, instructing counsel or assisting the represented
person in instructing counsel;
• (b) making decisions regarding the claim or application or
assisting the represented person in making those decisions;
• (c) informing the represented person about the various stages
and procedures in the processing of their case…
Designated Representatives – RPD
rules
(10) The responsibilities of a designated representative include:
• …(d) assisting in gathering evidence to support the represented person’s
case and in providing evidence and, if necessary, being a witness at the
hearing;
• (e) protecting the interests of the represented person and putting forward
the best possible case to the Division;
• (f) informing and consulting the represented person to the extent possible
when making decisions about the case; and
• (g) filing and perfecting an appeal to the Refugee Appeal Division, if
required.
Designated Representatives – RPD
rules

Duty of counsel or officer to notify

• 20 (1) If counsel for a party or if an officer believes that the Division should designate a representative for
the claimant or protected person because the claimant or protected person is under 18 years of age or is
unable to appreciate the nature of the proceedings, counsel or the officer must without delay notify the
Division in writing.
• (5) When determining whether a claimant or protected person is unable to appreciate the nature of the
proceedings, the Division must consider any relevant factors, including
• (a) whether the person can understand the reason for the proceeding and can instruct counsel;
• (b) the person’s statements and behaviour at the proceeding;
• (c) expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and
• (d) whether the person has had a representative designated for a proceeding in another division of the
Board.
Scenarios on Addressing the Needs
of Vulnerable Clients
Scenario 1
You are preparing for an interview with a client who has been referred
to you by an agency working with refugee claimants in Canada. The
counsellor at the agency who referred the claimant has told you he is a
51-year-old man who was tortured in his country of origin, and whose
wife and children were killed.
What are some steps you could take in your first meeting with your
client to establish trust and work towards providing them with a safe
space at your office?
Scenario 2
You are a male consultant, sharing an office with other consultants, male and female. Your
clients are a wife (W) and husband (H). W is the principal claimant. The couple alleges W
was arrested for attending a protest for girls’ rights in her country and held prisoner for
seven days. In your initial meeting, you notice H does almost all the talking. When W
speaks, it is in response to prompts from H and in a quiet monotone. After speaking with
them for about an hour, you make a follow-up appointment for the following week.

What steps could you take to ensure you are providing a safe space for both clients during
your second meeting and what procedural concerns do you have with respect to
representing these claimants?
Scenario 3
Your client is an 18-year-old who claims he was forcibly recruited to join a
militia as a child soldier. During his time with the militia, he was repeatedly
assaulted by an older soldier. You have met with your client twice before.

During your first meeting, he claims he was forcibly recruited after militia
members stormed his village, killing everyone but the boys older than 8 and
younger than 18.

During the second meeting, he told you the militia stormed into the village
and killed everyone but a small number of boys, as well as the girls and
women who were forced to marry militia members.
Scenario 3, cont.
Now, during your third meeting, he tells you that he was kidnapped at night by his uncle,
who sold him to the militia. When you try to gently point out to the claimant that this is the
first time he has mentioned his uncle, he explodes at you. You suggest a break.

During the break, you find that you yourself are beginning to feel frustrated and angry.
Doesn’t the client appreciate how much time you have devoted to trying to get his story
out in a coherent way? You are also worried that, even if you get things sorted out, there is
no way he will be able to deliver credible testimony in the hearing room.
What steps can you take to continue to work well with this client and to assist them with
putting forward their evidence?
Scenario 4
You have been representing a pair of brothers who are 23 and 14-years-old. Their claim is based
on a threat made to both of them by a gang in their home country.

The older brother is his younger brother’s designated representative and has been making most
of the decisions regarding the claim. About six weeks before the hearing, you reach out to the
older brother to arrange a meeting to prepare.
After not hearing from him for a couple of days, you call and the younger brother answers. He
tells you that his older brother was arrested for armed robbery of a car and was being held in
pre-trial custody.
What steps should you take to ensure the proper representation of both clients?
10-minute break
Mini Lecture on Credibility
Basic principles of credibility

Veracity – is the witness

honest and telling the
truth?
Is this trustworthy
Credibility
evidence?
Accuracy – does the
witness’s testimony provide
an accurate account of
facts?

To what degree is this In refugee cases we often

information useful in do not have direct evidence
Probative value
answering the question I and have to draw inferences
have to address? from known facts

Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 (CanLII)

Basic principles of credibility, cont.

(credibility) X (probative
Weight
value) = weight
Will change depending on
the context
How much evidence is
Sufficiency of evidence needed to establish the Evidentiary burden
claim? What additional evidence
could reasonably have been
brought?
Credibility – Your starting point

[5] […] When an applicant

swears to the truth of certain
allegations, this creates a
presumption that those
allegations are true unless there
be reason to doubt their
truthfulness. – Maldonado
What can rebut the presumption of
credibility?
Common findings related to credibility:
• BOC omissions
• Inconsistencies
• Absence of corroborating evidence
• Problems with corroborating evidence
• Implausibility findings
• You wouldn’t have acted that way
• That would have never happened
• If someone really wanted to harm
you, they would behaved this way
Credibility and procedural fairness

The RPD must: The RAD must:

• Give claimants the opportunity to address • provide notice of any new reasoning on
perceived inconsistencies in the evidence credibility and give the appellant the
• Provide reasons as to why explanations opportunity to respond (Bouchra v.
were dismissed Canada (MCI), 2020 FC 1063)
• Provide reasons as to the analysis behind
conclusions on credibility, weight, and
sufficiency of evidence
Credibility and unreasonable
inferences
Trauma impacts a claimant’s ability to testify about events

Expert reports on psychological impact of trauma cannot

be ignored

The Board “must consider the evidence from the perspective

of the teller […] in the context of the allegation contained in
the claim,” in order to consider properly “the effects that
such an experience might have” on their ability to testify.
Credibility and unreasonable
inferences
A “microscopic” search for gaps
or inconsistencies in testimony is
unreasonable
• Credibility is not a memory test

Demeanor is highly unreliable as

a test of credibility
• Intercultural miscommunication
• Problems in obtaining information
through an interpreter
Credibility and unreasonable
inferences
Plausibility findings should only be made in the clearest of cases when facts are inherently implausible
(rather than unlikely)

Decision-makers need to be aware of the impact of their “background, values, beliefs and life
experiences” on their assessment of credibility and plausibility

It is an error to assume agents of persecution will act “rationally”

It is an error to assume victims of persecution will act in a particular way

• delay
• reavailment
• transiting through a safe country
• returning to an abuser
Credibility and unreasonable
inferences
• Claimants may:
• travel on false documents
• lie in order to get to safety
• embellish elements of their
story
• produce false documents
• lack credibility in terms of
their story but nonetheless
face a well-founded fear of
persecution
Credibility and unreasonable
inferences
Documents from other countries do
not necessarily look like Canadian
documents

Documents must be assessed for

what they say – not what they do not
say

Documents cannot be dismissed just

because they come from an
interested source
Gender Guidelines and SOGIE
Guidelines
Gender guidelines have been
updated significantly

Gender task force at the RPD

SOGIE guidelines are relatively new

– lots of room for learning moments
for the Board
Gender Guidelines and SOGIE
Guidelines
Both guidelines intended to recognize the
unique challenges faced by claimants in
these categories and dispel common and
now thoroughly defunct myths
• A real sexual assault victim would:
• promptly report
• fight back if not consenting
• A real DV victim would:
• always report the abuse to the
police/family/community
• not stay in the relationship or return to their abuser
• The abuse could not have been serious if victim stayed
in the relationship
Gender Guidelines and SOGIE
Guidelines – More myths
 When credibility determination goes wrong

Claimant Judge Counsel

• Alari claims her • Rozenszajn didn’t • Judge’s line of

husband raped and believe her. questioning was an
beat her for years. • He didn’t “egregious
• The attacks got understand why the violation” of the
worse each time she beatings continued IRB’s guidelines
became pregnant for years after she
with a girl; he left her husband
wanted a boy. and moved to a
different city.
• “Why wouldn’t he
just kill you then?
Why spend all these
years, just, like,
harassing you?”

Source: Brian Hill and Jamie Mauracher (2019, Nov 27). Refugee judge asks woman why her husband wouldn’t ‘just kill’ her. Global News
Rahal v. Canada (MCI), 2012 FC 319
– A STERN WARNING!!!
[43] Second, contradictions in the evidence, particularly in a refugee claimant’s own testimony, will usually
afford the RPD a reasonable basis for finding the claimant to lack credibility, and, if this finding is reasonable,
the rejection of the entire refugee claim will not be interfered with by the Court […]

[45] Fourth, the RPD may legitimately have regard to witness demeanor, including hesitations, vagueness and
changing or elaborating on their versions of events. These sorts of matters may reasonably underpin a
credibility finding […]

[65] […]The date changes between the first and second PIFs are telling in that it is unbelievable that an
individual would not remember the date of an event as significant as a sexual assault, especially when the
first rendition of events was given just a few weeks after the assault allegedly transpired. […]the Board’s
credibility findings are reasonable as the evidence in question strongly supports the conclusion that the
Applicant was not telling the truth.
Credibility case study

Claim by a Sri Lankan Tamil man filed on July 15, 2015 and coming
up for a hearing in September 2016
• A Basis of Claim narrative
• Documentary evidence submitted by the claimant (ID card, Birth C, Med report)
• A notice of intervention from the Minister filed in accordance with rule 29 of
the Refugee Protection Division Rules (which includes a biometrics report and an
Ontario Birth C)

You were asked to identify potential credibility issues

New information
[To be revealed in class]
 Wrap-up
Any questions
or comments
relating to
content from
Module 5?