The following is a summary of a presentation done in 2021 for the SABA Advocacy Webinar.
Effective advocacy before the Immigration and Refugee Board (IRB) and the Federal Court of Canada demands thorough preparation and a deep understanding of the facts and applicable legal framework. Mastery of these elements is essential to persuade any decision-maker. There is no substitute for exhaustive preparation. For the Refugee Protection Division (RPD), this means a comprehensive grasp of the Basis of Claim, your disclosure, the National Documentation Package, and the analytical framework under sections 96 and 97 of the Immigration and Refugee Protection Act. At the Immigration Appeal Division (IAD), it requires familiarity with the Appeal Record, your materials, and the relevant framework—such as the Ribic and Chieu factors for removal order appeals or the genuineness factors for sponsorship appeals. Before the Federal Court, you must know the Certified Tribunal Record, your submissions, and the Department of Justice’s arguments with precision, defending your cases and distinguishing theirs.
Understanding the decision-maker and opposing counsel is equally critical. The RPD and IAD do not disclose presiding Members in advance, though experience reveals their styles over time. At the Federal Court, contacting the registry a week prior provides the Justice’s identity—study their decisions to tailor your approach. Adjust based on whether they’ve reviewed the materials thoroughly or require a detailed walkthrough. Similarly, anticipate the advocacy style of Department of Justice counsel or the Minister’s Counsel, whose approach may shape your preparation.
Anticipation is key. At the Federal Court, expect questions on the standard of review, reasonableness, or procedural fairness, and prepare to defend your position—particularly on issues like irreparable harm in stay applications. At the RPD, identify likely issues (e.g., credibility or Internal Flight Alternative) and ready your client accordingly. For the IAD, an adversarial setting, prepare for direct and cross-examination, tailoring your strategy to the Minister’s Counsel’s tendencies.
Focus your advocacy by selecting your strongest arguments and setting aside weaker ones, as extraneous points dilute your case. Clarity and conciseness are vital—use short, direct sentences, avoid repetition, and seek feedback to refine your submissions. Reputation carries weight; decision-makers value counsel who are trustworthy, prepared, and respectful. Address weaknesses in your case proactively and uphold the decorum expected of an officer of the Court.
For oral submissions, the IRB requires counsel to connect testimony and evidence to the legal framework—demonstrating a claimant’s refugee status at the RPD or entitlement to relief at the IAD.
In the Federal Court, while written materials secure leave, a compelling oral argument can sway a Justice, highlighting key points and addressing their questions. Preparation is rigorous: rehearse, organize your materials meticulously, and know the pivotal cases. During the hearing, speak clearly, adapt to the Justice’s engagement, and respond to questions promptly and honestly.
Finally, reflect on each experience. Losses, though difficult, offer valuable lessons. Advocacy is a long-term practice, not defined by a single case. Success hinges on preparation, adaptability, and integrity.
Raj Sharma, June 2, 2021
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