If the testimony of two witnesses contradicts each other, the testimony of one witness may be preferred to the testimony of another and given more weight, provided that the Board justifies its decision in this way. Viva voce is Latin and means „with the living voice” and refers to the oral testimony of a witness as opposed to witness testimony given in written form, such as an affidavit. The testimony of a witness under oath or assurance is called „testimony”. The certificate can be either viva voce or written. ORALLY. Living voice; verbally. A witness is said to give oral testimony when he or she does so in open court; The term contrasts with deposit. Sometimes it is against choice; Because the people vote by ballot, but their representatives in the legislature elect viva voce. When applied to the examination of witnesses, the term viva voce means oral testimony as opposed to witness testimony contained in statements or affidavits. Drawing an adverse conclusion is permissive and not mandatory. Footnote 66 The Federal Supreme Court has held that the IRB may make an adverse finding when evidence is available or could be made available but is not presented, or when a person has the opportunity to testify and receives but does not testify even if the legal and technical rules of evidence are not applicable.
Footnote 67 Oral Voting is voting by speech, as opposed to voting by written or printed ballot. The advantage of oral evidence over documentary evidence is that the witness is available for cross-examination and therefore the strength of the evidence can be verified. For this reason, credible evidence is sometimes given more weight than documentary evidence. Footnote 55 Case law suggests that a court may believe documentary evidence of a witness`s affidavit, provided it clearly and unequivocally explains why it prefers the former. Footnote 56 In Farzam, footnote 82, the Federal Supreme Court considered in detail the principles governing a judge`s discretion to hear witnesses by conference call. It is the responsibility of the requesting party to call a witness, to ensure that the request is made in a timely manner, that the summons is legally and technically feasible, and that the evidence that the witness must present is clearly relevant to the issues at stake. When assessing its credibility, evidence may be compared with written evidence to identify any discrepancies, contradictions or inconsistencies. In general, a witness should be given the opportunity to explain inconsistencies in his or her testimony. For more information, see the reference document Assessing the Credibility of Refugee Claims. [Latin, in a lively voice; word of mouth.] Verbally; oral.
In Mantilla Cortes v. Canada (Citizenship and Immigration), 2008 FC 254, the Federal Court held that while it is preferable to have an interpreter with witnesses during the hearing, the IRB Guidelines allow for exceptions. The RPD used teleconferencing to hear witnesses in other countries, including experts. Footnote 84 Mohammad v. Canada (Minister of Citizenship and Immigration), 2006 FC 352, at para. 16. In Aslani v. Canada (Minister of Citizenship and Immigration), 2006 FC 351, the Bundesgerichtshof found that the RPD`s requirement that the witness prove his or her identity by presenting himself or herself at the Canadian Embassy or otherwise is necessary to prevent refugee claimants from calling witnesses who are not for whom they claim to be. Gonzalez v. Canada (MEI) (1991), 14 Imm LR (2d) 51 (FCA).
See also Dolinski v. Canada (Citizenship and Immigration), 2010 FC 1121, in which the Federal Court agreed with the applicants that some of the reasons given by the RPD for rejecting the witness` testimony (i.e., his Roma origins, his refugee status and his relationship with the applicants) were inappropriate. MCI v. King, David Daniel (IAD T98-07875), Aterman, 27. May 1999: An application for an appeal by videoconference is dismissed because of concerns that videoconferencing would further interfere with communication with a mentally ill respondent. In Ferdinands v. Canada (Citizenship and Immigration), 2007 FC 1084, the Tribunal rejected the applicants` argument that defective videoconferencing equipment had violated their right to a fair trial. Regina v.
Buric et. s. (1996), 28 OR (3d) 737 (Ont. CA), appeal dismissed: [1997] 1 SCR 535. See also Gill, Gurpal Kaur v. MCI (FCTD, No. IMM-3082-98), Evans, 16 July 1999: The IAD did not allow the applicant`s wife (and sponsor) to testify because she had been present in the courtroom throughout the proceedings. The Court considered that this was an error of law. The parties to the administrative procedure have the right to be present throughout the proceedings and cannot be excluded because they are summoned to appear. The fact that the complainant`s wife had been in the room all the time might have affected the weight of his testimony, but there was no reason to exclude that evidence. Immigration Division Rules, SOR/2002-229 [Identification Rules], R 36; Immigration Appeal Division Rules, SOR/2002-230 [IAD Rules], R 41; Refugee Protection Division Rules, SOR/2012-256 [RPD Rules], R 48; RAD Rules, r 65.
In some cases where a significant witness does not testify, the decision-maker may conclude that the witness did not testify because the testimony would have been contrary to the interests of the party who would otherwise have had to summon the witness. Footnote 63 Caution should be exercised when drawing such a negative conclusion and the omission should be weighed against any other evidence presented. The evidence may not have been necessary to establish the cause. If there is a reasonable explanation for the non-reporting, no adverse conclusions should be drawn. Footnote 64 See also Milliken & Co. v. Interface Flooring Systems (Canada) Inc. (FCA, No. A-120-98, A-121-98), Isaac, Rothstein, McDonald, 26 January 2000, paragraph 11; MCI v Brar (FCTD, no-IMM-2761-01), Dawson, April 19, 2002, 2002 FCT 442: The IAD found that it was not mandatory for a sponsored applicant to testify the explanation for the applicant`s lack of testimony and did not make any adverse inferences. After judicial review, the Federal Supreme Court upheld the IAD`s finding, noting that if there was a reasonable explanation, the IAD was not obligated to draw an adverse conclusion from the lack of testimony. In Zhang, footnote 72, the Federal Court upheld the RPD`s finding that a claim for refugee protection under subsection 168(1) of the IRPA had been abandoned because the applicant was in default in the proceeding. During the hearing, the applicant refused to answer the panel`s questions before and after an unsuccessful request to reject the panel.
The Tribunal found that the complainant attempted to circumvent the rejection of her rejection request, breached her duty to answer questions, „shopped around as a member” and delayed the process. The Court stated that the circumstances of each case will determine whether the fact that a witness or asylum seeker does not respond to the procedures or leads to a negative conclusion in terms of credibility. However, where an applicant`s failure to respond so clearly contains elements of procedural non-compliance and lack of diligence in making a refugee claim, it is not unreasonable to conclude that such conduct falls within the scope of subsection 168(1) of IRPA.