How the RPD Member will be structuring oral decisions (based on training received when I was a RPO in November 2003): rpd oral decisions brought to you by Livescribe
Maldonado -- reads in part as follows: ‘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’ ...
I am working on a paper with Dr. Hap Davis IV on the psychological considerations on the concept of atrocity and the compelling reasons exception contained in the Immigration and Refugee Protection Act. A “Compelling Reason” is an exception under Canada’s Immigration and Refugee Protection Act. It provides an avenue to a refugee to be protected even if changes in the socio-political landscape of the country of origin makes it no longer possible for the individual to say that removal from Canada would subject him or her to danger of torture, cruel or unusual treatment or punishment, or a risk to life. Through jurisprudence the Federal Court in Canada indicates that if a person has suffered “appalling” or “atrocious” treatment, then this person may apply for the compelling reasons exception to the Act even if a return would otherwise be deemed safe. However, beyond the provision of synonymous and subjective terms such as "appalling" or "atrocious" the Court has not provided sufficient direction to the Refugee Protection Division. We hope to provide a review of of empirical psychological literature by which mental disorder and loss of instrumental, social, emotional and cognitive functioning in a claimant may be used to describe...
I arrived at the RPD office this afternoon expecting to attend with my client for his refugee hearing. Unfortunately, the client did not attend. While the vast majority of claimants are interested in 'having their day in court' and are anxious to appear before the Board, there are a substantial number that do not attend at the hearing. As a result of the "no-show", the RPD commenced abandonment proceedings, and ultimately determined the claim to be in fact abandoned. (Note: To cut down on the number of "no-shows" the RPD now requires the claimant(s) to sign and return a "Confirmation of Readiness" form) It should be noted that once a claim has been determined abandoned, it is extremely difficult to re-open the claim; and the claimant is forestalled from filing another claim for refugee protection. In addition, the removal order issued when the claim was referred becomes enforceable.
Looks like the proposed refugee reforms have undergone some changes. Because of a last minute withdrawal of support by the Liberals, Jason Kenney approached the NDP and Bloc. This political compromise has resulted in some changes to the bill that will eventually become law. The most significant change is that all rejected refugee claims would be able to seek an appeal with the Refugee Appeal Division (the Tories had wanted the RAD appeal process available only to those individuals not from a so-called 'safe' country). Looks like the 'safe' country list will become a reality; I think it won't be surprise to see Western Europe, India, most of South America and Mexico on it. Non-democracies (think Cuba, North Korea, Burma/Myanmar) and countries with no effective or functional government (Somalia, Congo) can't naturally be included on the list.
Found the following helpful commentary in L. Waldman's text on Immigration Law and Practice regarding the use of plausibility findings by the Board: "Plausibility findings should only be made in the clearest of cases -- where the facts as presented are either so far outside the realm of what could reasonably be expected that the trier of fact can reasonably find that it could not possibly have happened, or where the documentary evidence before the tribunal demonstrates that the events could not have happened in the manner asserted by the claimant..."
Refugee claim tomorrow morning. Some quick notes on the process: the refugee claimant bears the onus in establishing his/her claim for protection; for a s.96 claim the standard of proof is "more than a mere possibility of persecution" (which is less than the civil standard); for a s.97 the standard of proof is balance of probabilities; there is a presumption of state protection which can be rebutted with clear/convincing evidence of state's inability/unwillingness to provide protection; and the risk must exist in all parts of the country of nationality.
Disgraced refugee adjudicator/former city councilor/non-practicing lawyer Steve Ellis has been found guilty. Ellis was a former member of the Refugee Protection Division. He was found guilty of using his position for his benefit (IE he proposed a sexual relationship to a refugee claimant in exchange for a favourable consideration of her claim). I imagine the Law Society of Upper Canada may now move to suspend or disbar Ellis because of the criminal conviction. Ellis was apparently well regarded by his peers; but his appointment was likely one in which political considerations played a part. Kenney's refugee reforms have one silver lining - no political appointee will be involved in the front-line decision making process. Civil servants trained in adjudication and principles of administrative law and natural justice will make the initial decision.
As I've recently tweeted, I'm not a fan of euphemistic legislative titles. The 'Balanced Refugee Reform Act' should instead be called the 'Limiting Access to our Immigration and Refugee System'. The former title seems to imply that there is a balancing of interests. Let's be clear - there is no 'balancing', only a tipping of the scale in favour of the government. Lawyers Weekly has an article detailing the proposed changes to the current system here. The issue that few are talking about is the fact that there is an absence of independence in this proposed new system. Front-line decision makers are civil servants, not independent tribunal members. Why is this important? Rephrased: how can we be certain that a decision is on the facts and merits of the individual case when the Minister of Citizenship and Immigration (who presumably has the ability to determine the apogee and perigee of a civil servants career) is opining about the bona fides of claims from certain countries? There was a reason why an independent tribunal was set up to determine refugee claims. I'm not certain that abandoning that framework is the wisest course of action.
Iraq refugee claim up next week; country condition evidence is unequivocal as to the threat and danger faced by women in that country. However, given the harder stance taken by the RPD (in our experience, anecdotal though it may be) nothing should be taken for granted.
Attended at the IRB/RPD on Wednesday for a (Cuban) refugee claim. Paraphrased decision in Ward in my submissions: where fear is legitimate (or credible) and there is an absence of state protection, then it is not a great leap to presume that persecution will be likely. Cuba continues to harass, monitor, and persecute individuals it perceives as dissidents. Client is deserving of protection either as a Convention Refugee or a Person in Need of Protection.
Few can argue about the necessity of refugee reform. I suppose the devil will be in the details. As a former refugee protection officer I saw many manifestly unfounded refugee claims. Given the stakes involved, and to paraphrase an old legal maxim, I would rather see 10 manifestly unfounded claims succeed than see 1 genuine refugee turned aside. I am hoping that the Refugee Appeal Division becomes a genuine safeguard against 'false negative' decisions, and I hope that stereotypes about a particular 'safe country' does not result in an impossible burden for a claimant.
I attended at the Refugee Protection Division this afternoon for a refugee claim against Mongolia. The claim could be characterized as one under either s.96 or 97 of the Immigration and Refugee Protection Act. While the claimant was found to be credible, the RPD Board Member still had to be reassured that there was no state protection or an internal flight alternative (IFA) for the claimant. The Member reserved her decision. I am looking forward to reviewing the decision as the claimant was able to provide corroborative documentation with respect to her claim for protection.
Steve Ellis, a 'chubby, curly haired', former Immigration and Refugee Board Member is facing charges of breach of trust and bribery. The 'dishevelled' Ellis was caught on tape (video and audio) allegedly propositioning a refugee claimant. Ellis has pleaded not guilty to the charges. Toronto Sun article here. The recording apparently discloses a promise by Ellis for a favourable refugee decision. National Post article here. CTV story here. Needless to say, it was inappropriate for him to desire a 'friendship' with a refugee claimant, and inappropriate to meet the claimant (the subject of adjudication) at her place of work, and then set up a subsequent meeting at Starbucks. An adjudicator should have no business speaking with a claimant in any capacity outside of a hearing room. I don't believe that this was a deficiency in the training (which is quite extensive) of a Board Member, but rather the personal failings of an individual. He had to have known that what he was doing was wrong. YouTube video here:
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...
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.
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.
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.