Raj Sharma's Canadian Immigration Blog

The Refugee Hearing

The hearing (for claimants in Calgary) is held at the IRB offices at
201, 225 Manning Road NE. It may be held via videoconference despite the
fact that Calgary has three RPD Members (Mr. Darcy Tkachuk, Ms. Bindu
Narula, and Ms. Preeti Adhopia).



An interpreter (if necessary) will be provided by the Board and
interpretation can be provided by videoconference, teleconference, or in
person.



It is important for the claimant to check in with reception 30 minutes
before the scheduled start time.



The claimant should ensure that original documents are brought to the
hearing for the presiding Member to review.



An "Exhibit List" (at least in the Western Region) is generally provided
to counsel/self-represented claimants prior to the hearing and
references the Personal Information Form(s) (generally Exhibit "1"),
information from CIC/CBSA (the Port of Entry materials and the referral
interview), the Screening Form (which identifies important/determinative
issues such as state protection and IFA) as well as the National
Documentation Package containing country condition information.



Disclosure of documents intended for use at the hearing must comply with
the RPD Rules and should be submitted at least 20 days before the
hearing.



The hearing begins by the presiding Member and counsel canvassing some
preliminary issues. The claimant is then sworn in and the PIF is
"confirmed".



The presiding Member or the tribunal officer (not normally assigned in
the Calgary office to a hearing) begins the questioning of the claimant.



It's important that the claimant doesn't speculate or guess. "I don't
know" or "I don't remember" are perfectly acceptable responses.



Counsel then follows with questions or moves directly to submissions,
keeping in mind issues that have arisen during the course of the
hearing.



The preparation of the claimant by counsel is important. Statistics from
the US indicate a wide disparity in acceptance rates between
unrepresented and represented refugee/asylum claimants.



The basic refugee questions are the following:



* What do you fear in X?;

* Why are you at risk?;

* Who do you fear?;

* Did you go to the police or the authorities in your country?;

* Why can't you get protection from the authorities?;

* Is there somewhere you can go in your own country and be
safe?;

* Why are you at risk in all parts of your country?



Of course, additional questions arise given the responses, and questions
dealing with credibility are very important. The claimant may be asked
questions dealing with inconsistencies between his or her testimony, the
PIF or PIF narrative, claimant's documents or country condition
information. Plausibility, inconsistency and omission are all relevant.



It's important to note that victims of crime are not generally refugees
and don't fall within the definition of a Convention Refugee or a Person
in Need of Protection. Additionally, claimants must generally approach
own state for protection (unless the state itself is the agent of
persecution) and then show the state is unwilling/unable to provide
protection or that it would not be reasonably forthcoming. The 'burden'
of displacing the presumption of state protection increases where the
claimant is from a democratic or 'rule of law' country. Internal Flight
Alternative (or IFA) tends to be another determinative issue. If there
is an area where the claimant can go to and be safe (and is "reasonable"
in the circumstances) that claimant will be denied refugee protection.



Two IRB/RPD publications are important to review: Interpretation of the
Convention Refugee Definition in the Case Law and Assessment of
Credibility in Claims for Refugee Protection. Both are available on the
IRB's website.

Burma/Myanmar

Burma/Myanmar

This claim was heard today before the RPD. The claimant was a political activist. Country condition evidence was largely corroborative. The following issues were identified: credibility, political affiliation and failure to claim elsewhere. The claim was accepted by way of an oral decision at the conclusion of the hearing. The claimant was found to be credible and responses were found to be authentic. To some degree this was a sur place claim. Significant evidence was before the board as to the disappearance of a family member and membership and political activities.

Is the IRB independent?

Is the IRB independent?

Recent comments and actions by the immigration minister raises the spectre of executive interference in the operations of the IRB.

Kenney commented on the merits of claims from the Czech Republic and Mexico. This despite the high success rate of claims by Roma and evidence of societal discrimination and racism against the Roma minority.

His department has now sought judicial review of a IRB decision granting protection to a white South African, Brandon Huntley. Huntley's lawyers argue that this was done because of political pressure from the South African government.

Kenney has power to both appoint and reappoint Board members. Is it a great leap to presume Board members may face either an overt or implicit pressure to toe the line?

The independence of the courts has been recognized for centuries. There is no essential difference between a court and a tribunal like the IRB. There must be freedom for a decision maker to hear and decide the cases that come before them from any interference.

Unwarranted deference for Canadian Refugee Adjudication

I've finally completed my Major Research Paper (MRP) for my LLM. It's the final requirement for the degree. It was a great relief sending the draft to my supervisor this morning. The MRP is entitled "Unwarranted Deference to Canadian Refugee Adjudication" and discusses the issues facing the RPD.

To some degree, the RPD is hampered by legitimacy in decision making - RPD Members are often appointed based on patronage. The deference/respect shown to decisions of the RPD by the Federal Court is to some extent unjustified given the absence of the Refugee Appeal Division and the difficulties facing refugee adjudicators, including claims based on sexual orientation. While policy considerations exist in favour of wide judicial deference, justice must be obtained at the first instance and not in an after the fact judicial review exercise. Justice should not be denied because too many ask for it, or that its too expensive.

Immigration hearings

It'll be a busy December. Scheduled hearings include refugee claims against Burma, Colombia, Iraq, Romania, Somalia and Haiti.

Each claim type has challenges. Somalian claims for example typically lack identity documents. Haitian claims are typically complicated by long sojourns in the United States which results in a significant passage of time which tends to minimize the perceived risk to the claimant.

Burmese claims tend to be strong ones. The military junta brooks little dissent and the claim could succeed as a sur place one.

I'm also looking forward to the Iraqi claim which raises a well founded fear of persecution or risk to life based on religious persecution.

Interesting article at the National Post ... an Ontario court case seems to indicate that sponsor's who's relatives default (receive social assistance/benefits) may not automatically be required to pay back the funds to the government. This despite the very clear Sponsorship Agreement which forms part of any family class sponsorship application requiring sponsors to be responsible for their relatives. It seems that about 5,000 sponsored immigrants apply for social assistance (in Ontario at least). Some critics have commented on the administrative hurdles in setting up 'case by case' assessments of which sponsors should be required to pay and which should not.

I'm all for due process, but there are some circumstances and situations that call for sympathy. For example, if someone sponsors a husband or wife, and is the victim of marriage fraud, they should not be responsible financially when/if that individual accesses social assistance.

At least 1500 war criminals in Canada

A Quebec court has sentenced a Rwandan man to the harshest penalty possible under Canadian law.

What is relevant for the purposes of immigration law and policy is that the Rwandan national, Désiré Munyaneza, arrived in Canada and attempted to claim refugee protection, which was refused.

Having worked at the Refugee Protection Division, I came across others that should have faced charges in Canada for their activities. This did not happen. I once come across a self-professed leader of the Sipah-e-Sihaba - a banned terrorist organization in Pakistan. Strangely he alleged persecution from victims of the group in his attempt to seek protection/asylum. In this case, the claim was clawed back and sent to an admissibility hearing. I do not know what became of the SSP leader, but hope that he was removed from this country. 

It seems that 1500 war criminals or others that abuse human rights are in Canada. Included in that number may be convicted terrorists such as Parminder Saini, who is now seeking admission to the Law Society of Upper Canada. 

While I applaud the fact that justice has been served in Munyaneza's matter, it is disconcerting that there are so many others, known and unknown, that continue to reside in this country after participation in heinous acts abroad.

Refugee News

National Post has an article on the murder of a rejected refugee claimant from Mexico.

One wonders what Jason Kenney has in mind for the refugee reforms (article here) but some educated guesses would have to include fast-tracking refugee claimants from certain countries and additional decision making responsibilities for tribunal officers (see also the National Post article here).

Any reform would have to address the current system which encourages bogus refugee claims. In essence, the economic benefit of a refugee claim includes the ability to remain in Canada and work for years. Getting to a quick yes or a quick no is good for genuine refugee claimants that can establish their claim for protection and good for Canada which can effectively and efficiently remove individuals and preserve the integrity of the immigration system of this country.

Marrying for immigration

Just finished watching the w5 news program on immigration marriage fraud.

Julie Taub, an Ottawa immigration lawyer, suggests that immigration law be changed to grant only conditional status in Canada to the sponsored spouse. I'm not sure I agree. This could result in abuse and coercion as well - a method of control by the sponsor over the immigrant spouse.

Immigration minister Jason Kenney is indicating changes and reforms are imminent. To some degree I am in agreement with what Kenney stated. Individuals need to be responsible for their own choices. Immigration to Canada is a significant benefit and could be an incentive to unscrupulous individuals. As a result, sponsors need to take appropriate precautions.

As it stands visa officers test the bona fides of a marriage by way of an interview of the sponsored spouse. This may be insufficient to protect duped sponsors or the integrity of the system. Given the actions of unscrupulous immigration consultants (Pinnacle Immigration was captured on video by w5 discussing a sponsorship for 40000) and the plethora of fraudulent marriages perhaps follow up interviews should be done by immigration after the immigrant spouse arrives in Canada.

The more things change...

A boat load of illegal immigrants has arrived on the west coast resulting in calls for changes to Canada's laws. Sound familiar?

According to the Globe and Mail, Canada will take a "hard line" with these individuals, believed to be Tamils from Sri Lanka. 

10 years ago, and slightly before my time as a refugee protection officer (formerly known as a refugee hearings officer, and now known as a tribunal officer) a boatload of Chinese migrants evoked similar concerns. 

In 1914, almost 100 years ago, the Komagata Maru sailed into Vancouver Harbour to meet a chilly reception. Forcibly returned to India, despite being citizens of the British Empire, 20 people were killed by the British there. 

What separates this society from the one in 1914 is due process. Allow the specialized immigration tribunals to do their job and determine whether these individuals pose a threat to Canadian society, should be removed or are deserving of our protection. Calls for a 'hard line' are premature and only evoke earlier responses that were rooted in our fear of those different than us.