PRACTICE MANUAL - REPRESENTING CLAIMANTS BEFORE THE ... · In addition, LAO LAW publishes a newsletter of current criminal and family law legal developments of particular interest

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Legal Aid Ontario Practice Manual

October 16, 2003 II

Publication Information

Title: Practice Manual: Representing Claimants Before the Refugee Protection Division

Published: July 2003

Author: Legal Aid Ontario

For more information, please contact the Refugee Law Office (see LAO Contact Informationon page II).

Acknowledgments

Legal Aid Ontario would like to thank the Department of Justice for funding this project.


October 16, 2003 Page i

LAO Contact InformationMailing address:Legal Aid Ontario375 University Avenue, Suite 206Toronto ON M5G 2G1

Main Telephone #:416-979-2352orToll free: 1-800-668-8258

Web site:www.legalaid.on.ca

Department Dial direct Other contact infoRefugee Law Office 416-977-8111LAO LAW (Research Facility) Telephone: 416-979-1321

orToll free: 1-800-265-1392

www.research.legalaid.on.caE-mail: [email protected]

Mentor Hotline(free legal advice or advice on legalstrategy for lawyers working onlegal aid certificates)

Telephone: 416-979-9342 or Toll free: 1-800-668-8258,Ext. 4734

http://www.legalaid.on.ca/

http://www.research.legalaid.on.ca/


mailto:[email protected]


October 16, 2003 Page i

Table of ContentsStatutory Mandate .........................................................................................................................4Vision ...............................................................................................................................................4About this Practice Manual .........................................................................................................4

For more information on Legal Aid Ontario ..........................................................................5Getting extra copies and updates .............................................................................................5For more information.................................................................................................................5

Resources for Lawyers ..................................................................................................................6LAO LAW (Research Facility)....................................................................................................6E-billing and other electronic forms.........................................................................................6Mentor Hotline............................................................................................................................6

Definitions ......................................................................................................................................7Refugee Protection......................................................................................................................7

Convention refugee................................................................................................................7Person in need of protection .................................................................................................7Exclusion -- Refugee Convention .........................................................................................8

First steps.........................................................................................................................................9The initial interview ...................................................................................................................9First steps following the initial interview ...............................................................................9

Counsel of Record and Seeking Disclosure ........................................................................9Address Changes..................................................................................................................10

The Personal Information Form (PIF)......................................................................................11Interviewing the claimant to complete the PIF ....................................................................11Questions to ask........................................................................................................................12

Membership in a group .......................................................................................................12Involvement with the group ...............................................................................................12How the authorities viewed the group .............................................................................13Problems arising from membership in a group by other family members..................13Problems faced by the claimant..........................................................................................13Problems of similarly-situated persons.............................................................................13Detention................................................................................................................................13Details of arrest and detention ...........................................................................................13Release or escape ..................................................................................................................14Reporting to police or authorities ......................................................................................14Torture and other mistreatment .........................................................................................14State Protection .....................................................................................................................14Internal flight alternative.....................................................................................................14Departure from country of persecution ............................................................................15Failure to claim elsewhere...................................................................................................15Re-availment issues..............................................................................................................16Delay in claiming in Canada...............................................................................................16Recent information from country of persecution ............................................................16


October 16, 2003 Page ii

Finalizing the PIF......................................................................................................................16Filing the PIF .............................................................................................................................16Reporting back to the claimant...............................................................................................17

Gathering Evidence to Support the Claim..............................................................................17Obtaining medical/psychological assessments ...................................................................17

Supporting the objective basis of the claim ...........................................................................18Country conditions research ...................................................................................................18Claimant - specific evidence concerning lack of protection ...............................................20Where to find country documentation ..................................................................................20Disclosure of documents .........................................................................................................21

Refugee Claims Before the Immigration and Refugee Board.............................................21Nature of the hearing ...............................................................................................................21

Different Types of Procedures (Triage Process) ....................................................................22Expedited interview .................................................................................................................23

Preparation ............................................................................................................................23The interview ........................................................................................................................24If a hearing is scheduled......................................................................................................24

Short hearing .............................................................................................................................24Regular hearing.........................................................................................................................25Complex cases ...........................................................................................................................26

Procedure at a hearing.................................................................................................................26Preliminary Matters..................................................................................................................26Introduction into evidence of the PIF ....................................................................................26Introduction of documentary evidence .................................................................................27Discussion of the issues ...........................................................................................................27Order of Questioning ...............................................................................................................28Interpretation.............................................................................................................................28Submissions ...............................................................................................................................29Oral submissions.......................................................................................................................29Written submissions.................................................................................................................32

The Decision and After the Decision.......................................................................................33Other Matters................................................................................................................................33

Designated representative.......................................................................................................33Witnesses ...................................................................................................................................34Abandonment of a claim .........................................................................................................34Remedies if case is abandoned ...............................................................................................36Federal Court.............................................................................................................................37Withdrawal................................................................................................................................38Reinstatement of claim after withdrawal ..............................................................................39

Appendix A – Sample Letters....................................................................................................40Notification of counsel and request for POE/CIC notes ....................................................41Notification to client that change of venue granted ............................................................42Letter to client with copy of filed PIF ....................................................................................43


October 16, 2003 Page iii

Letter to client where abandonment hearing has been ordered ........................................44Letter to client advising of intention to get off record.........................................................45Notification to client that you will no longer represent him/her......................................46Letter to IRB to be removed as counsel of record ................................................................47Letter to client notifying of hearing date...............................................................................48Letter to client where claim successful ..................................................................................49Letter to client after unsuccessful claim ................................................................................50

Appendix B – Sample IRB Screening Form............................................................................51Appendix C – Affidavit of Identity..........................................................................................52Appendix D – Sample Submissions from a Gender-Based Claim.....................................53Appendix E – Sample Submissions from a Claim Based on Political Opinion ..............64Appendix F – Sample Application to Re-Open .....................................................................75Statement of Service – Example 1 .............................................................................................81Statement of Service – Example 2 .............................................................................................82Notice to Appear – Example 1 ...................................................................................................83Notice to Appear – Example 2 ...................................................................................................85Notice of Abandonment Decision – Example 1 .....................................................................86


October 16, 2003 Page 4

Statutory MandateThe Ontario government introduced legislation in late 1998 that created an independentagency called Legal Aid Ontario (LAO). The purpose of the corporation is to promoteaccess to justice throughout Ontario for low-income individuals. The Legal Aid Services Act,1998, (LASA) establishes the following mandate for LAO:

• To promote access to justice throughout Ontario for low-income individuals byproviding high quality legal aid services;

• To encourage and facilitate flexibility and innovation in the provision of legal aidservices;

• To recognize the diverse legal needs of low-income individuals and disadvantagedcommunities;

• To operate within a framework of accountability for the expenditure of public funds.

As part of its mandate, LAO is committed to identifying, assessing and recognizing thediverse legal needs of low-income individuals and disadvantaged communities. LAOprovides legal aid services by any method it considers appropriate, including certificates,staff offices, duty counsel, community legal clinics, public legal education, summaryassistance, alternative dispute resolution and self-help materials.

VisionLegal Aid Ontario will pursue its legislative mandate with the goal of achieving:

• excellence in accessibility and quality of client service;• effective relationships with service providers, and• efficient, accountable and innovative use of resources.

About this Practice ManualThis manual is intended for lawyers and supervised paralegals representing refugeeclaimants before the Refugee Protection Division (RPD) of the Immigration and RefugeeBoard (IRB).

The manual is intended to be a guide to best practices in representing claimants before theRefugee Protection Division of the Immigration and Refugee Board.

The focus of the manual is on preparation of the Personal Information Form (PIF) which iscrucial to the success of a claim. The PIF will become even more important in the comingmonths, as the IRB moves to take away the right of counsel to examine the claimant in chief.

This is not intended to be a legislative guide.



Counsel should be familiar with:

• The Immigration and Refugee Protection Act (IRPA) (http://laws.justice.gc.ca/en/I-2.5/text.html),

• The RPD rules (http://www.irb.gc.ca/en/about/rules/rpdrules2_e.htm#claim),

• The commentary to those rules(http://www.irb.gc.ca/en/about/rules/rpdcomment_e.htm#rule29).

This manual is also not a guide to jurisprudence on definitional issues. Links to resourceson interpretation of the definitions are given at the end of the following section.

For more information on Legal Aid Ontario

• Legal Aid Services Act (http://192.75.156.68/DBLaws/Statutes/English/98l26_e.htm);

• LASA Regulation 106/99; (http://192.75.156.68/DBLaws/Regs/English/990106_e.htm);

• LASA Regulation 107/99; (http://192.75.156.68/DBLaws/Regs/English/990107_e.htm).

Also see:

• Tariff and Billing Handbook (http://www.legalaid.on.ca/en/info/Resources.asp);

• Duty Counsel Manual (http://www.legalaid.on.ca/en/info/Resources.asp).

Getting extra copies and updatesUpdates and additional copies of the manual will be provided in electronic format, throughthe LAO Web site at www.legalaid.on.ca. New updates will be publicized through the legalmedia and legal aid area offices.

For more informationFor more information about this handbook, please contact:

Refugee Law OfficeLegal Aid Ontario375 University Avenue, Suite 206Toronto ON M5G 2G1Telephone: 416-977-8111Fax: 416-979-5567

http://laws.justice.gc.ca/en/I-2.5/text.html

http://laws.justice.gc.ca/en/I-2.5/text.html

http://www.irb.gc.ca/en/about/rules/rpdrules2_e.htm#claim

http://www.irb.gc.ca/en/about/rules/rpdcomment_e.htm#rule29

http://192.75.156.68/DBLaws/Statutes/English/98l26_e.htm

http://192.75.156.68/DBLaws/Statutes/English/98l26_e.htm

http://192.75.156.68/DBLaws/Regs/English/990106_e.htm




http://www.legalaid.on.ca/en/info/Resources.asp




http://www.legalaid.on.ca/



Resources for Lawyers

LAO LAW (Research Facil i ty)Lawyers acting on legal aid certificates have access to research assistance throughLAO LAW. Standard memoranda of law are provided free of charge for specific legal aidcases and can be ordered by phone, through the Internet or by mail.

In addition, LAO LAW publishes a newsletter of current criminal and family law legaldevelopments of particular interest to lawyers who accept legal aid certificates. Thenewsletter (LAW@LAO) is available through the Web site.

To contact LAO LAW:

Telephone: 416-979-1321 or toll free at 1-800-265-1392

Fax: 416-979-8946

Web site: www.research.legalaid.on.ca.

E-bil l ing and other electronic formsLAO is moving into the electronic age, and will soon conduct many routine businesstransactions with lawyers and clients through web-based technology. Get started now, bychecking out the following resources on the LAO Web site:

• Electronic versions of the civil and criminal account forms (forms 50 and 51);

• E-billing software – free of charge to allow you to submit your accounts electronicallythrough secure Internet technology;

• Direct deposit – save time and money by ensuring you receive your legal aid paymentsdeposited directly to your bank account.

Mentor HotlineLAO provides a mentor service offering summary legal advice or advice on legal strategyfor less experienced lawyers who represent clients with legal aid certificates. The mentorsare volunteer senior lawyers with five or more years of experience in the following areas oflaw; criminal, family, civil litigation, personal and bodily injury, landlord and tenant, childwelfare, medical malpractice, Workers’ Compensation, consent and capacity andimmigration and refugee.

The mentor hotline is 416 979-9342 or lawyers can call the office of the Vice-President,Client Legal Services toll free at 1-800-668-8258 extension 4734. Mentor lawyers usuallyreturn calls within 24 hours.




Definitions

Refugee ProtectionUnder the Immigration and Refugee Protection Act (IRPA), refugee protection is given tosomeone who is found to be a Convention Refugee or a person in need of protection. Theseterms are defined under Sections 96 and 97 of IRPA. Together they are known as theconsolidated grounds, although frequently the term is used just to refer to the protectiongiven under s.97. The Immigration and Refugee Board (IRB) has the jurisdiction now notonly to determine whether someone is a Convention refugee, but also can make adetermination as to whether a person is a person in need of protection. There is a singlehearing at which all of these grounds should be considered.

IRPA provides the following definitions for Convention Refugee and Person in need ofprotection:

Convention refugee

96. A Convention refugee is a person who, by reason of a well-founded fear ofpersecution for reasons of race, religion, nationality, membership in a particularsocial group or political opinion,(a) is outside each of their countries of nationality and is unable or, by reason of thatfear, unwilling to avail themself of the protection of each of those countries; or(b) not having a country of nationality, is outside the country of their former habitualresidence and is unable or, by reason of that fear, unwilling to return to that country.

Person in need of protection

97. (1) A person in need of protection is a person in Canada whose removal to theircountry or countries of nationality or, if they do not have a country of nationality,their country of former habitual residence, would subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture within themeaning of Article 1 of the Convention Against Torture; or(b) to a risk to their life or to a risk of cruel and unusual treatment orpunishment if

(i) the person is unable or, because of that risk, unwilling to availthemself of the protection of that country,(ii) the risk would be faced by the person in every part of thatcountry and is not faced generally by other individuals in or fromthat country,(iii) the risk is not inherent or incidental to lawful sanctions, unlessimposed in disregard of accepted international standards, and(iv) the risk is not caused by the inability of that country to provideadequate health or medical care.

A protected person does not include someone who is excluded from the definition. Thegrounds for exclusion are set out in Articles 1E and 1F of the Refugee Convention. UnderIRPA , these grounds for exclusion apply to cases falling under s.97 as well. This is



important to note because the Convention against Torture does not contain exclusionclauses.

Exclusion -- Refugee Convention

98. A person referred to in section E or F of Article 1 of the Refugee Convention is nota Convention refugee or a person in need of protection

Articles E and F of the Refugee Convention are as follows:

E. This Convention shall not apply to a person who is recognized by the competentauthorities of the country in which he has taken residence as having the rights andobligations which are attached to the possession of the nationality of that country.F. The provisions of this Convention shall not apply to any person with respect towhom there are serious reasons for considering that:

a. he has committed a crime against peace, a war crime, or a crime againsthumanity, as defined in the international instruments drawn up to makeprovision in respect of such crimes; b. he has committed a serious non-political crime outside the country ofrefuge prior to his admission to that country as a refugee. c. he has been guilty of acts contrary to the purposes and principles of the

United Nations

Useful Web sites for learning about the interpretation of the definition of Conventionrefugee in Canadian law are at the Immigration and Refugee Board Web site:

• http://www.irb.gc.ca/en/about/divisions/rpd/crdef/index_e.htm

• and at the LAO LAW Web site:http://www.research.legalaid.on.ca/cgi/site4/RefugeeLM.htm

For the consolidated grounds, the two papers prepared by the Legal Department of theImmigration and Refugee Board in May 2002 is a good place to start:

• http://www.irb.gc.ca/en/about/divisions/rpd/cgrounds/torture/index_e.htm

• http://www.irb.gc.ca/en/about/divisions/rpd/cgrounds/life/index_e.htm

http://www.irb.gc.ca/en/about/divisions/rpd/crdef/index_e.htm

http://www.research.legalaid.on.ca/cgi/site4/RefugeeLM.htm

http://www.irb.gc.ca/en/about/divisions/rpd/cgrounds/torture/index_e.htm

http://www.irb.gc.ca/en/about/divisions/rpd/cgrounds/life/index_e.htm



First steps

The initial interviewAt the start of the initial interview, counsel should explain to the claimant the role ofcounsel. Counsel should explain that what the claimant tells counsel is confidential.

During the initial interview, it is important to obtain from the claimant all of the documentshe or she has obtained from Canada Immigration Centre (CIC), or from the Immigrationand Refugee Board (IRB). This will include the Eligibility document, Removal Order andNotice to Appear.

It is important to find out when the claimant received the Personal Information Form (PIF)since it must be completed and submitted to the IRB within 28 days.

First steps following the initial interview

Counsel of Record and Seeking Disclosure

Counsel should write to the IRB advising that he or she is counsel of record.

The lawyer should also write to the IRB requesting copies of the information the Board hasreceived from Canada Immigration (See Appendix A – Sample Letters on page 40). Thiswill include forms the claimant has filled out as well as the port-of-entry or inlandinterview notes. It is important to obtain these as early in the process as possible,preferably before the completion of the PIF (Personal Information Form). That way anyproblem areas can be discussed with the claimant during PIF preparation and anyinaccuracies or discrepancies can be addressed in the PIF.

If it is not possible to complete the PIF within the 28 days, a request for an extension of timeneeds to be made to the Immigration and Refugee Board before the due date, if possible.The reasons for the request need to be detailed in the letter. The IRB is starting to take theposition that a delay in retaining counsel is not a sufficient reason in itself for granting anextension of time. For this reason, it is essential to mention any disability such as languageor lack of education, or any other mitigating factor such as bad advice which may havedelayed the claimant from retaining counsel.

It is important to show due diligence and an intention to pursue the claim, since if the PIF isnot filed on time, the Board may take steps to abandon the claim. A lack of intention toabandon the claim is an important consideration at an abandonment hearing.

Furthermore, any difficulties faced by counsel in trying to complete the PIF in time shouldbe detailed. For instance, if there has been a problem getting a competent interpreterdespite serious efforts, or if the claim is particularly complicated, or if the claimant hasphysical or psychological problems which make completing the PIF within the 28 daysimpossible, these should be mentioned.



Address Changes

The claimant should be advised about keeping the lawyer’s office informed of any addresschange. The claimant should be advised as well of the importance of notifying both the IRBand CIC if the claimant changes his or her address. Many claimants will not understandthat the IRB and CIC are different bodies and that both need to be advised. If counselundertakes to advise the IRB and /or CIC of any changes of address, counsel should beclear as to the limit of the undertaking.

Counsel should be particularly cautious about undertaking to notify CIC of addresschanges, because the client’s relationship with CIC will continue after the refugee claim iscomplete. If the claim is not successful, CIC will send a notification for the claimant tosubmit a Pre-Removal Risk Assessment (PRRA) application to the refused claimant at thelast address CIC has; a failure to respond to the notification could lead to the person beingremoved from Canada without a risk assessment. This notification could be sent months oreven years after the refugee hearing.



The Personal Information Form (PIF)

Interviewing the claimant to complete the PIFNote:: The starting point for the description of questions to ask the claimant is from materialprepared by Barb Jackman, Barrister & Solicitor, for educational seminars after the introduction ofthe previous Act.

The PIF is the most important form in the refugee process. In preparing the PIF, counselneeds to keep in mind the definitions of Convention refugee and persons in need ofprotection. Counsel also needs to keep in mind both the inclusionary and exclusionaryaspects of the claim.

The PIF has two parts, which can basically be described as “personal data, “ and the“narrative”. The personal data questions include questions about the claimant’s birth date,citizenship, family members, history of residence and employment, identity and traveldocuments, and how the claimant came to Canada.

The narrative requires the claimant to set out all of the incidents which caused him or her toseek protection in Canada, as well as any attempts the claimant made to obtain protectionfrom the state.

The information in the form is critical. It will affect how the case is screened. (See DifferentTypes of Procedures (Triage Process) on page 22. It will be the first document the decision-maker will read about the claim. Any discrepancies or omissions can be used to discreditthe claimant at the refugee hearing. To minimize such problems, it is important to use askilled interpreter.

While there is an opportunity for amending the PIF before the hearing, those amendmentsthemselves may become the subject of cross-examination.

When contacting the claimant to arrange the first interview to prepare the PersonalInformation Form, or at the first interview, suggest that they use the copy provided byImmigration to fill out as much of the personal information as possible. This is particularlyimportant with respect to the questions concerning family members, places of residence,and job histories, as answering these questions can be very time consuming if the claimanthas not thought about them ahead of time. Reassure the claimant that counsel will beworking with him or her to complete the PIF and to leave blank anything the claimant isnot sure of.

It can also be suggested that the claimant outline in written form, in their own language,their reasons for leaving their country. You can explain to the client that it would be helpfulif the claimant outlined in chronological order the things that happened that caused him orher to be afraid to go back to their country.

It is important that the claimant understands that this is just a starting point, and that thelawyer will be working with the client to ensure that all of the facts are included. If theclaimant does not seem comfortable or able to do this, do not insist.



There is a danger that a claimant, especially a claimant lacking in education, may feel thisassignment is a requirement that has to be done even if the claimant is not capable of doingso. The client might seek out a friend to help him or her, or even a consultant. The draftyou get back might not be the client’s own story.

Remember that for those clients who may lack the necessary language skills or ability to fillout the PIF or provide a written narrative in their own language, it will be necessary to startfrom scratch in a series of interviews.

Whether or not the claimant has been able to do a draft, counsel needs to inquire about theclaimant’s situation.

Although the Board now has jurisdiction to grant refugee protection on the basis of theconsolidated grounds as well as on the Convention refugee definition, most claims are stillrelated to the definition.

Starting from that premise, counsel should first explore the claimant’s connection to any ofthe grounds in the Convention refugee definition. Counsel should ascertain if the claimanthas ever been a member of a political party, religious organization or social group. If so, getthe name and other details about the party or group. In the case of a political party, askabout the party’s political line, ideology or platform.

Questions to ask

Membership in a group

Membership in a group or an organization may be established by documentary evidence,through the evidence of the claimant or through a combination of both. The claimant willneed to indicate when he or she first became involved in the group. That may or may notbe the same date as when the person became a member. The claimant should explain his orher reasons for becoming involved in the group.

Involvement with the group

• When and why the claimant first became involved with the group.

• Get as much detail as possible about what the claimant actually did in the group.

• Find out if the claimant attended meetings or demonstrations.

• Note if the claimant had a role in organizing or assisting at meetings or demonstrations.

• Find out exactly what the claimant did, and be careful to characterize the role properly.There is a danger, for example, that if the claimant is described as an organizer, but itturns out he or she was one of many who gave out pamphlets, the Board might see thisas the claimant trying to exaggerate his or her importance.

On the other hand, if the claimant actually was an organizer, but is not described assuch in the PIF, and the PIF is absent details about the organizing the claimant did, the



Board might accuse the claimant of trying to bolster his or her claim when this role isdescribed at the hearing.

• Where possible, get the exact dates of the demonstrations attended by the claimant. Inthe case of meetings, at least their frequency, location, and the number of attendeesshould be noted.

How the authorities viewed the group

The claimant should be asked how the authorities or other groups viewed the group ofwhich the claimant was a member. It is important to note any problems that the claimanthad because of his or her membership.

Problems arising from membership in a group by other family members

Sometimes a claimant has problems not because of the claimant’s own membership, butbecause of a family member’s involvement in an organization. Inquire as to whether anymembers of the claimant’s family have been so involved. If so, counsel should explorewhen the family members were involved, the degree of involvement, and whether or notthat person or persons had problems relating to their involvement.

If there was involvement, find out where the family members are now. If the familymembers are still in the country, find out if the claimant knows whether they have had anyproblems since the claimant left.

Problems faced by the claimant

The narrative should indicate when the claimant’s problems began, the nature of theproblems, and where possible, the exact dates when events occurred.

Problems of similarly-situated persons

The experiences of persons similarly situated to the claimant can help establish the objectivebasis of the claimant’s fears. While the documentary evidence may be a source for thisinformation, the claimant may have knowledge of specific incidents involving friends,neighbours or other members of his or her organization. Again it is necessary to describewhen the problems occurred, the nature of the problems, and the results of the problems.

Detention

Was the claimant detained?

Details of arrest and detention

Where the claimant was detained, it is important to elicit information about that detention.Ask the claimant the date or dates when he or she was detained. Find out who detained theclaimant, the number of persons involved in his or her arrest and detention, whether thepersons were uniformed or not, where the claimant was arrested, where he or she wastaken to, and how long the detention lasted.



A detailed examination of the prison or other place of detention is important. If there wasinterrogation, details about the interrogation, both about the treatment received and thequestions asked, need to be sought. The conditions in the detention facility and thetreatment accorded the prisoner are also relevant, especially so where the claim could bebased on the ground of cruel and unusual treatment.

In cases of arrest, find out if the claimant was charged with any offence, and whether anyreport was written about the claimant.

Release or escape

Questions also need to be asked about how the claimant got out of detention. Was he orshe released, or was there an escape? If a bribe was paid, or influence used, that needs to benoted. In the case of a release, did that end the claimant’s contact with the authorities or didthe person have to report to the police or other authorities? Were there any conditionsattached to the release?

Reporting to police or authorities

Even where the claimant was not detained, the claimant should be asked if he or she wasever required to report to the police or other authorities. If so, find out if there weredocuments to that effect that the claimant had to sign.

Torture and other mistreatment

Cases where the claimant has been tortured raise special difficulties. The claimant mayhave been psychologically as well as physically scarred. It is important to get a completedescription of what occurred. Find out if he or she has scars or other physical injuries. Findout if the claimant received any medical or psychological treatment afterwards. If theclaimant did, and if it is possible to obtain a report of that treatment, that should be done.Otherwise, steps should be taken to obtain a medical and/or psychological report here.

State Protection

The issue of state protection needs to be addressed where the claimant fears non-stateactors or authorities that are not national in scope. The claimant needs to be asked whetherhe or she took any steps to try to get state protection. If so, what was the result? If not, whynot? If the claimant did not seek state protection because he or she had tried in the past andit was ineffective, or if the claimant was aware of other people who had tried unsuccessfullyto get such protection, details of such attempts should be stated in the PIF.

Internal flight alternative

The claimant needs to be asked if he or she tried to go to another part of his or her country.If the claimant did try moving to another place, find out why the claimant did not staythere. If the authorities or anyone else the claimant fears came looking for him, or if theclaimant received any threats there, that should be noted.

Find out whether the claimant was able to work or study there. If the claimant was inhiding there, or otherwise was unable to live a normal life there, that should be stated. If



there are other reasons why the claimant could not go to or remain in another part of his orher country, those reasons need to be set out.

These questions are important because, in the end, the claimant is going to have to showthat he or she had no internal flight alternative (IFA). If the claim is based on theConvention refugee definition, or on the Convention against Torture, the claimant will needto show there was no place in the claimant’s country where he or she would be free fromrisk, and where it would be reasonable to go and to stay..

With respect to claims based on a risk of death or of cruel and unusual treatment, there maynot be a reasonableness element. In those cases, it is likely that the Board will find aninternal flight alternative in a place that is safe for and accessible by the claimant. As ofMarch 2003, there have been no reported decisions, but this is the view taken by theImmigration and Refugee Board’s legal department (This view is not binding on themembers.):

http://www.irb.gc.ca/en/about/divisions/rpd/cgrounds/life/cglife_e.htm#31.

Departure from country of persecution

Another area which needs to canvassed is when the person decided to leave his or hercountry. If there was a passage of time from the last persecutory incident, someexplanation as to why there were no further persecutory acts in that time will need to begiven. If the claimant changed his or her place of residence that needs to be stated. If sucha change provided a temporary solution, it will be necessary to try to explain why thiscould not be a permanent solution.

If during this time, the claimant encountered problems short of persecution these should becanvassed.

Some of the questions in the personal data section of the PIF may need to be explained inthe narrative. For instance, if the claimant was able to leave his or her country using his onher own passport, the claimant should be asked if there were problems obtaining it.

Similarly, if the claimant had to pay a bribe to leave, or if there some other unusual aspectto their leaving the country, this should be mentioned in the PIF. If the person had to leaveon a false passport, or by using someone else’s passport, this should also be referred to inthe narrative.

If the claimant had problems leaving his or her country, this should be mentioned in thePIF.

Failure to claim elsewhere

If the claimant passed through other countries on his or her way to Canada, the claimantshould explain in the narrative why he or she did not make a refugee claim in thosecountries.

http://www.irb.gc.ca/en/about/divisions/rpd/cgrounds/life/cglife_e.htm#31



Re-availment issues

If the claimant previously travelled outside of his or her country, and then returned to thatcountry, an explanation should be given, particularly if the claimant had faced incidents ofpersecution before leaving.

Delay in claiming in Canada

If the claimant did not claim at the port-of-entry, find out in detail the reasons why.

Recent information from country of persecution

Ask the claimant about any information he or she has received since leaving his or hercountry. The claimant may have received information that people are still looking for himor her. Also, the claimant may have some information about what has happened to familymembers or persons similarly situated to the claimant. Any such information should beincluded in the PIF.

Finalizing the PIFOnce the draft of the PIF has been completed, it is best to finalize it on another day. Thiswill give the claimant a chance to think about any information that may have been left out,and for the lawyer to consider whether there are any areas which need to be exploredfurther.

In finalizing the PIF, counsel should be especially alert to any discrepancies in datesbetween the narrative and the “personal data” section. For example, the narrative mightindicate that a claimant was in detention from April to May 1999, yet the “personal data”section might say that he or she was working.

It is important to clarify this with the claimant, because for some claimants it may be thatnot having quit or been fired, they consider that they were still working for that employer;while in other cases, there may be an error that needs correcting. If it is the formersituation, then it would be advisable to explain the claimant’s thinking in the narrative.

Filing the PIFOnce the client and the lawyer have met and the PIF has been translated back to the clientthrough an interpreter, the claimant has to sign in the spaces provided. Five copies of thePIF are then made. It is important that the PIFs be delivered to the Immigration andRefugee Board in a manner which ensures that counsel and the claimant will have proof ofservice. The use of a courier is the most reliable way to ensure this.

The courier is to deliver the original and four copies of the PIF to the reception at the IRB. Thereceptionist at the IRB will date-stamp the copies and give two copies back to the courier tobring back to the office. One should go into the file, and the other should be given to theclient. This may be done by mail, or by asking the client to come and pick it up.



Reporting back to the claimantWhen returning the PIF to the claimant, a letter should be given to the client advising thathe or she can now apply for an employment authorization and/or a student authorization.Forms may be obtained from the Citizenship and Immigration office located at 55 St ClairAvenue East, or from the following page of the Government of Canada Web site(http://www.cic.gc.ca/english/applications/visitor.html).

� Despite the reference to “visitor”, this is the form that refugee claimants need to use.This is also a good opportunity to remind the claimant of the need to try to get personalidentity documents, as well as other documents which would be helpful in establishing theclaim. In some cases, it is a good idea to provide the claimant with a list of the type ofdocuments that the claimant should try to get. For instance, where a claim is based onparty membership, a membership card or a letter from the party could be listed.

The claimant should be advised to keep the envelopes in which documents are received,because the Board member will probably ask to see them at the hearing. The claimantshould notify counsel as soon as any documents are received.

In addition, counsel should once more emphasize the importance of the PIF. If the claimantdiscovers any mistakes after the PIF has been filed, or the claimant has received newinformation, he or she should be advised to contact counsel at once.

Gathering Evidence to Support the Claim

Obtaining medical/psychological assessments In many cases, after interviewing the claimant, it will be apparent that a medical orpsychological report will assist the case.

• Refer the claimant to a doctor who has experience dealing with refugee claimants orpeople who have experienced torture. Physical assessments can corroborate injuries theclaimant has suffered or medical procedures that the claimant has undergone.Psychiatric expertise can be helpful in identifying Post Traumatic Stress Disorder andother symptoms claimants suffer from as a direct result of what they experienced intheir country before they fled.

• The names of experienced doctors and psychiatrists can be obtained from the CanadianCentre for Victims of Torture (CCVT) at (416) 363-1066.

• The initial contact with the doctor to request a physical or a psychological assessmentcan be made by phone. It is a good idea to confirm the appointment in writing.

• Where the claimant is covered by legal aid, this fact as well as the certificate numbermust be included in the letter. This means that the doctor will charge a fixed rate for themedical report.

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• If there is a deadline for the report to be submitted, (i.e. the 20-day disclosure deadlineor hearing date), this should also be brought to the attention of the doctor immediatelyboth verbally and in writing.

• A copy of the PIF narrative should be forwarded to the doctor before the appointment;it can be attached to the confirmation letter.

• The claimant should be advised of the purpose of the appointment, the importance ofattending, as well as the time and date of the assessment. Tell the claimant that thedoctor will already have a copy of the PIF narrative.

• If an interpreter is required, it is the claimant’s responsibility to provide one.

• Once the assessment has been completed, request that the doctor forward a draft forreview. When booking the appointment, find out how long it will take to obtain thereport.

• Review the report to ensure accuracy with respect to the PIF narrative and otherpersonal information. If upon review, counsel feels that there are mistakes, or that somematters have been overlooked, contact the doctor immediately.

• Once the completed report has been received, counsel should notify the claimant wherea doctor has recommended follow-up treatment or therapy. If treatment has not beenpursued, counsel should prepare the claimant to answer this question at the hearing.Also, if counsel anticipates that any aspect of the doctor’s report will give rise tocredibility concerns at the hearing, counsel should review and discuss the report withthe claimant.

• The report has to be filed with the Board at least 20 days before the hearing date. If thehearing has not been scheduled and the claimant is anxious to have it proceed, a requestcan be made to the Board to schedule it. The doctor’s report can strengthen this request,especially if it refers to the stress or deteriorated mental health of the claimant.

Supporting the objective basis of theclaim

Country conditions researchNote: This section is based on “Country Conditions Research and Documentation for RefugeeClaims.” written by Matya Kotlier for the Refugee Law Office (1996).

By the time counsel has completed interviewing the claimant for preparation of the PIF,counsel should have answers to the following questions:

• What is the basis of the claim?

• Who is the claimant and why does he or she fear returning to his or her country?



• What are the identifying characteristics which put her at risk?

• Who is the claimant afraid of and why?

The next step is for counsel to strategize about what evidence to present to support theobjective basis for the claim. In order to show there is an objective basis to the claim it isnecessary to provide evidence of the country conditions in the country or countries wherethe claimant fears persecution. Evidence of country conditions can be introduced in threeways:

• Documentary evidence (human rights reports, newspaper or magazine articles, books,letters from friends or relatives);

• Expert Evidence (this can be by the expert testifying at the hearing, or by way ofaffidavit or report);

• Oral evidence. This can be by the claimant and also by other witnesses who haveknowledge of the country in question but who may not be qualified as experts.

Where witnesses are being called, counsel needs to be mindful of Rule 38 of the RefugeeProtection Division Rules. Rule 38 requires that notice be given to the Board and to anyother parties of the witness’ contact information, the purpose and substance of the witness’stestimony, the time needed for the witness’s testimony, and whether counsel wishes thewitness to testify by videoconference or telephone. In the case of expert witnesses, the ruleis more onerous; counsel must provide a signed summary of the witness’s evidence, as wellas a description of the witness’s qualifications.

The type of documentary evidence that is necessary depends on who the agent ofpersecution is.

If the agent of persecution is part of the government authorities, counsel should:1. Document human rights abuses by the authorities in general.

2. Document abuses by the particular branch of the authorities that the claimant fears.

3. Document any impunity the government authorities have, and/or the lack of adequateprosecution of human rights violators.

(In a federal state or in any situation where the claimant fears local authorities, it may benecessary to research the reach of the authority’s power.)

Sometimes, the agents of persecution, while not governmental agents themselves, are linkedto governmental authorities. Examples include paramilitary groups, death squads, somereligious communities (for example in a theocracy). In such situations, it is important to:

1. Document the abuses by the group.

2. Document the group’s ties to the government authorities.

3. Document any impunity the group has, or the lack of adequate prosecution of itsmembers for human rights violations.



For cases involving the Refugee Convention or risk to life or of cruel and unusualtreatment, it is not necessary that the agent of persecution be connected to the state.Examples of such non-state agents are rebel groups, drug cartels, religious communities,spouses (in cases of domestic abuse). In such cases, one should try to:

• Document the abuses by the group or individual;

• Document any influence or ties which the group (or individual) may have with theauthorities. (Although a connection to the state is not necessary, it may be relevant inshowing that the state may not provide protection);

• Document any impunity the specific group has and/or the lack of adequate prosecutionof human rights violators generally.

Claimant - specific evidence concerning lack ofprotectionDesirable documentation would include evidence showing the inability or unwillingness toprovide protection to the claimant or to persons who are similarly situated. With respect tothe claimant himself or herself, copies of reports taken by the police or declarations ordenunciations made by the claimant are particularly useful. In terms of similarly situatedpersons, human rights reports or affidavits by such individuals are examples of probativedocumentary evidence.

Where to find country documentationA starting point, and a starting point only, is the “RPD Information Package” an index ofwhich the Board provides to counsel or the claimant in advance of the hearing. Counsel canborrow the package for copying by attending at the Documentation Centre of the IRB.

Many of the documents in the index are available on the Internet, however downloadingfrom the Internet will not provide the pagination system the Board uses. This could createdifficulties when referring to the documents at the hearing, or perhaps more seriously,when trying to find the reference when the Member or RPO is referring to a document atthe hearing.

The “RPD Information Package” normally consists of some human rights reports such as theAmnesty International annual report, the U.S. Department of State Country Report on HumanRights Practices, as well as Response to Information Requests. The latter are responses torequests for information by Members or RPOs in previous cases. They are available on theIRB’s Web site: http://www.irb.gc.ca/en/researchpub/research/index_e.htm.

It is, of course, not necessary to duplicate information in the RPD Information Package. Onthe other hand, it is wise to be wary about the packages. Although less politicized than atthe height of the Cold War, the DOS Reports may sometimes be overly optimistic abouthuman rights improvements by American allies; the U.K. Home Office reports sometimesmake sweeping judgments about whole classes of refugees. Both reports, as well as theResponse to Information Requests are held in high esteem by most Board members. To

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counter assertions in those documents, it is necessary to find and submit qualitydocumentary evidence. In some cases, it may be necessary to look for expert witnesses tocounter information in these documents.

The RPD Information Packages can become stale well before they are revised, which isusually once a year. Counsel should ensure that more recent documentation is submittedas evidence.

There is an abundance of human rights materials on the Internet. Links to human rightsreports and other sources of information can be found at:

• Refugee Lawyers Association: http://www3.sympatico.ca/martinj1;

• The “resources” tab of the http://www.e-refugee.ca site;

• Country packages prepared by the Refugee Law Office are available from LAO Law:http://www.research.legalaid.on.ca.

Disclosure of documentsRule 29 of the RPD Rules requires that documents be disclosed 20 days before the hearing.An exception is made for documentary evidence introduced in reply to disclosure from theMinister or from the Refugee Protection Division itself; such documents may be introduced5 days before the hearing.

In order to get an exception from these time limits, counsel should be aware of Rule 30, andwill need to address the following factors:

• The relevance and probative value of the documents;

• Whether it brings “new” evidence to the hearing, and

• Whether with reasonable effort, counsel could have submitted it earlier.

The IRB’s Commentary to the Rules(http://www.irb.gc.ca/en/about/rules/rpdcomment_e.htm#rule29) indicates that theRPD can consider the personal circumstances of the claimant, as well as when thedocuments were sent in.

The Commentary also sets out the form in which documents need to be. They must be onsingle-sided letter-sized paper and, if more than one document, need to be page-numberedand have a table of contents.

Refugee Claims Before the Immigrationand Refugee Board

Nature of the hearingNote: In April 2003, the RPD is announcing dramatic changes to the nature of the hearing.

http://www3.sympatico.ca/martinj1

http://www.e-refugee.ca/


http://www.irb.gc.ca/en/about/rules/rpdcomment_e.htm#rule29



Hearings before the RPD are generally before a single member of the Board. In some casesthere will be 3 member panels. According to the Board’s policy “Designation of Three-Member Panels,” (http://www.irb.gc.ca/en/about/policies/3mempanel_e.htm), there arethree instances when there will be three member panels.

1. The first is for training new members.

2. The second is to “develop the analysis of the RPD on critical substantive or proceduralquestions.” This would include situations where the Board wanted to create cases withprecedential value.

3. The third is “to facilitate the exchange of ideas between regions.” This happens wherethe Board wants to reduce discrepancies in acceptance rates between regions.

Except in situations where the Minister is attending as a party, hearings are supposed to benon-adversarial. However, the reality is often quite different. The Refugee ProtectionOfficer often vigorously cross-examines the claimant, and members also question theclaimant.

The limits to which a member can go in the manner and content of his or her questioningare still not defined by the Federal Court. A recent decision however, found there was not areasonable apprehension of bias even where the Member’s “energetic and extensivequestioning” was at times “insensitive” and not relevant. (Tchiegang v. Canada (M.C.I.)2003 FCT 245); (http://decisions.fct-cf.gc.ca/fct/2003/2003fct249.html).

Nevertheless, if counsel concludes that the member has descended in the arena and nolonger appears impartial, counsel needs to raise the question of reasonable apprehension ofbias at the hearing.

This is not to say that all, or even most hearings are adversarial. Much will depend on theparticular personalities at play, but counsel has to be prepared to vigorously protect his orher client. Counsel must object to irrelevant or misleading questions, whether by the RPOor by the member.

Counsel needs to have a grasp of all of the documentary evidence before the tribunal, andbe attentive to situations where often inadvertently the member or the RPO does not fairlyput excerpts from that evidence to the claimant. Sometimes the member or the RPO willask the claimant to comment on a particular statement in that evidence. Where there isevidence that says something different, counsel should request that that evidence also beput to the claimant, or counsel should be prepared to raise it in re-examination.

Different Types of Procedures (TriageProcess)The IRB determines refugee claims using different methods, depending on a number offactors. These include: the country conditions from which the claimant has fled; theacceptance rates for the claimant’s country; personal claimant documentation; as well as thespecifics of the claim set out in the PIF. Based on these factors, the case will be dealt with inone of four ways by the Board as set out in its “Triage Process”:

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1. Expedited interview;

2. Short hearing;

3. Regular hearing; or,

4. In cases where the Minister is intervening, the Board refers to a complex hearing thatmay involve many sittings.

Expedited interviewAn expedited interview is a procedure by which a person can be determined to be aConvention refugee without having to go through a hearing. An expedited interview is nota hearing. The interview is conducted by an RPO and there is no member present. If theclaimant is not successful in the expedited process, the claimant remains entitled to have hisor her claim determined at a hearing.

It is not always possible to predict which cases will be scheduled for an expeditedinterview. One of the most relevant factors is whether there is a high acceptance rate for theclaimant’s country. In the Board’s own policy document,(http://www.irb.gc.ca/en/about/policies/exprocess_e.htm), it states that claims whichappear to be manifestly well-founded will be expedited.

Another factor is whether the claimant is able to provide personal documentation tosupport the claim, and whether it appears to fit the Convention definition or meet theConsolidated Grounds criteria. This is in addition to the existence of strong countrydocumentation that corroborates the objective basis for the claimant’s fear.

The Board policy refers to another criteria for expedited claims -- the absence of anyapparent inconsistencies or anything that appears implausible which would make a hearingnecessary. Complex legal or factual issues, as well as intervention by the Minister’srepresentative will also exempt a claim from the expedited process.

If counsel is of the opinion that a claim should be expedited, a request can be made either inthe cover letter that accompanies the PIF when it is submitted or by letter at a later date.

Preparation

Preparation for the expedited interview involves reviewing the entire PIF with the claimant,both the narrative and personal data sections. Counsel should also determine whetherthere is any additional information that needs to be brought to the interview. It is notnecessary to provide country documentation at expedited interviews, but if there is anyinformation that refers specifically to the claimant, this should be brought to the interview.

That said, there may be situations where bringing in one or two strong country conditiondocuments would be advisable, where, for example, change in country conditions maycome up as an issue. Counsel should prepare the claimant for what to expect during theinterview and advise the claimant of the possible outcomes.

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The interview

The expedited interview is conducted by the Refugee Protection Officer (RPO). Theinterview is recorded. The claimant does not have to make an oath or solemn affirmation atthe interview, but the RPO will read a general declaration about the claimant’s obligation totell the truth and will ask if he or she understands it.

Generally, the RPO focuses on credibility, as it is already assumed that the objective basisexists for the claim. Identity can be resolved as an issue at an expedited interview.

The claimant should bring the originals of any identity documents to the interview. TheRPO takes notes during the interview. It is essential that counsel do the same because theremay be a misunderstanding that can be easily clarified, or the notes will prove useful if theclaim is referred for a hearing.

The interview cannot last longer than an hour unless the claimant consents and the RPO isof the opinion that the extra time could lead to the claim being accepted without a hearing.

After the RPO’s questions, counsel can ask further questions of the claimant. At the end ofthe interview, the RPO usually indicates whether he or she will recommend that the claimbe dealt with in an expedited manner or whether it should be dealt with at a full hearing.

Occasionally, the RPO reserves his or her recommendation in order to consider theevidence given at the interview or may require further documentation to support someaspect of the claim. The RPO’s notes and recommendation are forwarded to the Boardmember for review. If there are no credibility or other issues raised, the case can be decidedfavourably without a hearing. If the RPO recommends that the claim go to a hearing andthe Board member makes that decision, there is no appeal. A hearing will be scheduled.

If a hearing is scheduled

At the hearing, a copy of the “Expedited Report” written by the RPO will be filed. Itincludes a summary of the information elicited at the interview and the RPO’srecommendation. During the hearing, the claimant can be cross-examined on any priorinconsistent statement made at the expedited interview. If there is a dispute about what theclaimant actually said, the tape recording from the interview can be introduced at thehearing.

Short hearingThis type of hearing is also referred to as an accelerated hearing. Claims are scheduled inthis way when the Board member reviewing the claim determines that it can be heard inapproximately two hours. Short hearings involve claims from countries with either high orlow acceptance rates. Usually there are one or two issues to be resolved.

Regardless of its name, a short hearing or accelerated hearing is, unlike the expeditedinterview, a hearing before a Board member. There may or may not be an RPO present.Country documentation should be submitted.

The procedure for the short hearing is very similar to what happens in a full hearing, withthe only real difference being the amount of time it is anticipated to take. The Federal Court



has ruled, however, that the tribunal cannot “unreasonably direct the production of the[claimant’s] case, against the objection of the [claimant’s] counsel” or “make inordinateinterjections to limit the production of evidence from the claimant” (Nihat Asan v. Minister ofCitizenship and Immigration), 2003 FCT 276, March 5, 2003.

It is important for counsel to object if the tribunal denies the claimant a chance to introduceessential evidence in order to comply with the short hearing time frame.

Regular hearingA regular or full hearing is scheduled where many issues have been identified and it isanticipated that the hearing will last two to four hours. However, sometimes such hearingscan go on for a full day, or may require more than one sitting.

After the PIF has been submitted to the IRB, the claim is “screened” by the Board. It is atthis point that the determination as to how the claim will be heard is made. A sample RPDFile Screening Form is attached at Appendix B – Sample IRB Screening Form on page 51.

The screening form also sets out what the RPO and Board member consider to be the issuesat the hearing. These range from credibility, which is an issue in every claim, to Exclusion,and whether, for example, Article 1F(a) of the Convention on Status of Refugees should applyto exclude the claimant from refugee status.

The subjective component of a claim is examined; for example, whether there was anydelay before the claimant made his or her claim. The objective component is also screened,including such issues as who the agents of persecution are, or whether there has been achange in circumstances in the claimant’s country. There is also a section in which theapplicability of the Consolidated Grounds will be noted.

The screening form is a very important tool for preparing the claimant. Counsel knows theissues that have to be addressed and can therefore prepare the claimant to expect what willbe at issue at the hearing. The form is also useful for directing research for countrydocumentation to support the claim.

If at the hearing, the Board member raises issues that were not mentioned on the screeningform, counsel should seek an adjournment where proceeding would be unfair to theclaimant. This would be the case where counsel assumed from the screening form that theBoard was satisfied as to a particular issue.

Once a date has been set for hearing, counsel and the RPO should submit all personal andcountry documentation no later than 20 days before the hearing. It is important to contactthe claimant well before that deadline in order to determine if there has been anycorrespondence from the claimant’s country or if there is any other information that wouldsupport the claim.

It is also necessary to review the PIF with the claimant in detail so that any changes orcorrections can also be submitted to the Board (with amendments underlined) at least 20days prior to the hearing.



The Board has become more stringent in its application of this 20-day disclosure rule andmay in fact refuse to accept documentary evidence that could have been submitted in atimely manner.

Complex casesA complex case is one in which the hearing is likely to last more than half a day. It could bea case in which there might be security, exclusion, serious criminality andmisrepresentation issues. It could be a case that involves issues the Board has not dealtwith before, or involve a new situation in a country.

A complex case is more likely to see the involvement of the Minister. Once the Minister’srepresentative becomes involved, the hearing is no longer even nominally adversarial.Counsel will need to prepare the claimant for a rigorous cross-examination, and beprepared to challenge the credibility of the Minister’s evidence.

Procedure at a hearing

Preliminary MattersIt is a good idea to prepare the claimant for what will happen in the hearing room, while atthe same time acknowledging that not everything can be anticipated. It is helpful to make adiagram of what the hearing room looks like and where all of the participants sit.

If an interpreter is going to be used, he or she is sworn in and given an opportunity to talkwith the claimant to see if they understand one another.

The claimant is then asked to swear on a holy book, or to affirm, to tell the truth. Thischoice should be explained to the claimant during hearing preparation, so that the claimantcan decide in advance. This way, the claimant is not caught off guard at the beginning ofthe hearing, where he or she is already nervous. This may sound trite, but a few awkwardmoments around the commitment to tell the truth can set a negative tone for the hearing.

Introduction into evidence of the PIFAt this point, counsel is asked if there are any changes to the PIF. It is possible to changedates, spelling or other minor changes to the PIF, but if the Board member thinks thechange is substantive in nature, there could be an issue as to whether or not the amendmentwill be accepted because of the 20-day disclosure rule. (Rule 29) If, for example, theclaimant has just learned of the arrest or departure from the country of one of his or herrelatives, it can be argued that it was not possible to provide this information twenty daysbefore.

The PIF is shown to the claimant, with attention drawn to the signature page. The claimantis asked to identify their signature. The claimant is asked if the contents of the PIF weretranslated and if he or she understands it. The claimant is then asked if the contents (withamendments) are true and accurate to the best of their knowledge and belief.



Once this is done, the PIF is entered as an exhibit. Country documentation and copies ofpersonal identification already submitted by counsel to the Board will be entered as furtherexhibits. The RPO’s disclosure, including Port of Entry notes, country documentationpackage, and any specific requests for information generated by this claim will be enteredas exhibits also. The same is true for any documents the Minister’s representative intendsto rely upon, where a representative is participating.

Introduction of documentary evidenceThere may be documents relevant to the claim which were not submitted to the Board bythe 20-day deadline. The reason for this may be that the claimant only recently received anidentity document, helpful country condition documents have just come to counsel’sattention, or critical events in the country actually occurred after the deadline.

In order to persuade the Member to accept the evidence within the 20-day period, counselshould be prepared to argue the relevance and probative value of the evidence, as well asany lack of prejudice to the parties in having it introduced. The efforts made by counseland the claimant to obtain the evidence more than 20 days before the hearing will be atissue. There obviously is a range of circumstances.

Evidence about events which occurred less than 20 days before the hearing (which somemembers will still make counsel argue about) is the most likely to be accepted. Evidenceclearly available before the 20 days will be more problematical. Somewhere in between isevidence which existed in another language, but which was not translated before the 20days.

In any of those circumstances, if the evidence is relevant and probative, counsel has a dutyto the claimant to try to get it admitted. Even if it is rejected, it may provide grounds forjudicial review if the Board rejects it without considering all of the circumstances. If noattempt to admit the evidence is made, there will be no basis for challenging the Board’sdecision on judicial review, except on grounds of incompetence of counsel.

Where a document is received by counsel within the 20 days, it should immediately be sentto the Board, in order to minimize any prejudice and so that the argument for its admissionwill be looked on more favourably by the member. If it is within 48 hours of the hearing, itis a good idea to notify the RPO or case officer that an additional document is beingsubmitted and to fax or courier it as soon as possible; if no one is expecting the document, itmay not make it from the mailroom to hearing room in time for the hearing.

Discussion of the issuesSome Board members like to have a pre-hearing conference before any evidence is heard.Explain to the claimant that he or she and the interpreter may be asked to wait outsidewhile counsel, the Board member and the RPO discuss the issues.

Either at the pre-hearing conference or in the hearing room without a conference, the issuesthat are set out in the screening form are confirmed, deleted or additional issues are notedto frame the examination of the claim. Some Board members list specific questions that



they want counsel to ask. Since these are questions the member wants answers to, thisrequest should not simply be ignored.

If counsel believes the question is irrelevant or inappropriate, counsel can make anobjection. Also, counsel can suggest to the Board member, that although the questions willbe addressed, counsel prefers not to ask them in that particular order. In that way, counseldoes not lose control of his or her examination-in-chief.

Order of QuestioningMake sure that claimants understand the usual sequence of questioning: that counsel goesfirst, then the RPO, and then the Board member. Claimants should also know that the Boardmembers often interrupt counsel’s questioning for clarification or to ask additionalquestions.

If counsel believes that it is simply a question of clarification, or that it is in the claimant’sinterest for an area to be canvassed at that time rather than later at the hearing, counselshould not object. However, counsel should strongly object if the member’s interjectionsinterfere with counsel’s examination or appear to be taking on an adversarial role.

Claimants should know that counsel has the opportunity to ask questions at the very end,after the Board member and RPO are finished. The purpose of the re-direct is to clarify anyincomplete answers or issues that arose during the claimant’s testimony when questionedby the other parties. For example, the claimant’s answer to a crucial question may havebeen vague or it may have left the wrong impression, perhaps because the claimant did notunderstand the question.

During the hearing, counsel should be making notes of this type of situation in order toredress it in re-direct and during submissions. Counsel can try to address these issues in re-direct, but must be careful not to make the situation worse. Re-examination is the lastimpression the member will have of the claimant.

InterpretationThe claimant has a right to good interpretation: Interpretation which is “continuous, precise,competent, impartial, contemporaneous”, as the Federal Court of Appeal held in Mohammadianv. Canada (M.C.I.), 2001 F.C. 85 (http://reports.fja.gc.ca/fc/2001/pub/v4/2001fc28931.html).

It cannot be emphasized enough that any apparent problems with the interpreter during thehearing should be mentioned immediately to the Board member. The Federal Court has heldthat it is an objection to bad interpretation must be made as soon as it is reasonable to do so.

Check with the claimant at breaks to make sure that he or she is confident of theinterpretation. Often though the claimant is not sufficiently conversant in English (orFrench, if that is the language of the hearing) to know whether the translation issatisfactory. Counsel needs to be alert to possible problems.

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Some indications of problems with interpretation are:

• A long answer by the claimant in his or her language followed by a few words inEnglish from the interpreter;

• Hearing an answer which is very different from what was said during preparation; or,

• A lengthy exchange between the claimant and the interpreter before the interpretergives his translation. This last example may be a situation where the interpreter ishonestly striving to get the most exact interpretation, especially where there aretechnical terms involved; however, a good interpreter will advise the Board memberand parties of what he or she is trying to do.

SubmissionsOnce the questioning of the claimant has ended, the Board member may render a decisionor request submissions from counsel and the RPO. A Board member cannot render anegative decision without hearing submissions. In the event that they do, the best course ofaction is not to address it at the hearing, but to seek judicial review at Federal Court. Apositive decision can be made without submissions.

Counsel has the right to make a submission first, and then the RPO can make his or hersubmissions called “observations. Counsel can address the observations during their reply.This is usually done orally at the conclusion of the hearing. Submissions may also be madein writing, where:

• There is not enough time at the end of the hearing;

• There are many complex issues involving a lot of evidence; or

• If additional information will be sought following the hearing.

With written submissions, a time frame is identified which includes an opportunity toreply. The Board member may direct counsel to address only some of the issues identifiedat the outset of the hearing if he or she has been satisfied on other issues.

Counsel may ask the member to identify which issues do not need to be addressed insubmissions. Once the Board receives the submissions, observations and reply, a writtendecision will be issued. The decision can take anywhere from a few weeks to many months.

Submissions may be given orally at the conclusion of the evidence, or in writing, to be sentto the Board by a date set by the member.

Oral submissionsIf submissions are made orally, the procedure is that counsel makes a submission, which isfollowed by the observations of the RPO and then counsel has the right of reply. One of themain disadvantages of this method is that where submissions address an issue such ascredibility, this may highlight concerns that were not obvious to the RPO.



Many Board members request that the RPO make their observations first in an attempt tostreamline the procedure. This has an advantage in that counsel has the opportunity to hearwhat credibility concerns the RPO has regarding the evidence. In addition to this, the RPOoften gives his or her observations and then leaves the hearing room.

Counsel should always be prepared to make submissions at a hearing, regardless of howstraightforward a claim may seem. Prior to the hearing it is a good practice to outline thesubmissions on the case. The Screening Form provided by the IRB is the general guide thatshould be used when doing this.

Counsel should do a draft submission that includes the issues, the evidence on each one,the relevant case law and analysis. It is good practice to have the relevant case law on handat the hearing to refer to during submissions. When referring to case law, counsel shouldhave the proper style of cause, file number and the ruling on the issue.

At the beginning of submissions the basis of the claim should be outlined. For example,state upon which of the Convention refugee grounds or consolidated grounds the claim isbased. A general summary of the facts of the claim should follow.

The issues of the case should then be outlined and dealt with in turn. Often the issue ofidentity is discussed first. Under the IRPA, identity must now be addressed in all casesbefore the Board, so it makes sense to start with it, unless the Board has indicated eitherduring the evidence, or at the conclusion of the evidence, that it is satisfied as to theclaimant’s identity.

In discussing identity, it is a good idea to outline the question first: has the claimantestablished personal identity? Counsel should then outline the evidence presented in thecase that establishes the claimant’s identity.

Identity is usually established by a combination of two areas, documentary evidence andoral testimony. Documents that have been entered at the hearing to establish identityshould be reviewed, the most usual being a birth certificate, national identity card, or otheridentification from the claimant’s country.

Oral evidence that also supports identity should then be referred to, including the ability tospeak a particular language or dialect if ethnicity is an issue, as well as geographicalknowledge of the region and country. At this point, any affidavit evidence that wassubmitted to support identity would also be reviewed in counsel’s submissions.

Under IRPA, the possession of acceptable identity documents, or a reasonable explanationfor their absence, is relevant to credibility, because of the statute:

Credibility 106. The Refugee Protection Division must take into account, with respect to thecredibility of a claimant, whether the claimant possesses acceptable documentationestablishing identity, and if not, whether they have provided a reasonableexplanation for the lack of documentation or have taken reasonable steps to obtainthe documentation.



One of the main issues in all cases is that of credibility. While counsel is taking notes of thetestimony, it is a good idea to make very clear notes on areas of concern with credibility.They will be helpful when it is time to make submissions on the issue.

Credibility issues usually involve alleged inconsistencies or implausibilities.Inconsistencies in the claimant’s evidence usually arise in the following areas:

• Between the PIF and/or the oral evidence and the Port of Entry notes;

• Between the PIF and the oral testimony;

• Between the testimony and known country conditions or events that have beenreported; or even,

• Between testimony given earlier in the hearing and testimony given later.

In examining the credibility concern a number of questions must be asked:

• Is it in fact an inconsistency?

• Has the inconsistency been resolved through explanation?

• If not, does it go to the core of the claim?

• If it does, and that portion of the evidence is removed, is there enough evidence for theBoard member to make a determination that the claimant is a Convention refugee or aprotected person?

In addressing plausibility, counsel should use the principals set out in Divsalar v. M.E.I.,(F.C.T.D.) IMM-1246-01, June 10, 2002:

24] Further, it is accepted that a tribunal rendering a decision based on a lack ofplausibility must proceed with caution. I find it useful to reproduce the followingpassage from L. Waldman, Immigration Law and Practice, (Markham: ButterworthsCanada Ltd. 1992) at page 8.10, paragraph § 8.22 which deals with plausibilityfindings and the impact of documentary evidence that may be before the tribunal:

§ 8.22 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 couldreasonably be expected that the trier of fact can reasonably find that it couldnot possibly have happened, or where the documentary evidence before thetribunal demonstrates that the events could not have happened in themanner asserted by the claimant.

Plausibility findings should therefore be “nourished” by reference to thedocumentary evidence. Moreover, a tribunal rendering a decision based onlack of plausibility must proceed cautiously, especially when one considersthat refugee claimants come from diverse cultures, so that actions whichmight appear implausible if judged by Canadian standards might beplausible when considered within the context of the claimant’s background

Counsel should have all the relevant case law on credibility in order to guide the Boardmember as to what must be considered when analyzing this particular claim.



Submissions are also the opportunity to highlight those aspects of the documentaryevidence supportive of the claimant’s case. Reference should be made to both specificdocumentary evidence, if any, such as police or medical reports concerning the claimant,and to documentary evidence concerning country conditions, such as human rights reportsand news articles. Counsel needs to be prepared to refer to specific page numbers. Whilemany members may discourage counsel from reading passages by saying that the pagereference is sufficient, if the passage is particularly compelling, counsel should read it to themembers.

Counsel needs to assess how knowledgeable the member is about the countrydocumentation in a particular hearing. If in doubt, counsel should be very persistent aboutleading the panel to the specific references. It is, of course important to link that evidence tothe claimant’s own situation.

Once oral submissions are given, the Board member may render a decision, which can beeither positive or negative. Often, the Board member reserves the decision and renders it inwriting at a later time. Although there was a time when a reserved decision was almostalways a negative one, that is no longer the case.

Written submissionsWritten submissions are usually done where a claim is complex, involves many issues, timewas allowed after the hearing for new information to be acquired, or where a hearing hasgone on over a whole day or a number of sittings. Counsel may request to do writtensubmissions where something unanticipated has occurred at the hearing, and the shortbreak usually given before oral submissions commence would not be sufficient for counselto catch his or her bearings and to do persuasive submissions.

When written submissions are required, the Board requests that they be filed by a certaindate, usually two weeks from the date the hearing. The RPO is then given a time frame inwhich to write their observations and then further reply is given to counsel. However, in aneffort to streamline the case, the Board often asks that the RPO give their observationsorally at the hearing. Or, if time does not permit, the RPO is asked to provide written oralobservations first.

The main difference between oral and written submissions is that written submissionsallow counsel the opportunity to do a more detailed analysis of the issues and to providecase law. With credibility concerns, where the notes taken during the hearing are unclear,counsel can request the tapes from the hearing in order to confirm the testimony. Thisrequest must be done in writing and should be done as soon as possible given the timeframe for getting the submissions completed.

As with oral submissions, counsel will set out the basis for the claim, the issues and then anexamination of the issues that sets out the evidence, the case law and an analysis.

It is incumbent on counsel to get the submissions in on the date requested by the Board.Failure to do so may mean that the Board will render a decision without the submissions.In the event that the submissions are not ready for the due date, a request for an extension



must be made in writing, citing the reason, with a date that the submissions will becompleted.

It is possible to submit evidence or further submissions on a claim before a decision hasbeen rendered, but the Board now requires an application to be made. If a decision hasbeen reserved for a while and the circumstances in the claimant’s country change for theworse, an updated country documentation package can be very useful.

The Decision and After the DecisionIf there are oral submissions, then the member may give the decision from the bench, or themember may reserve the decision. Where there are written submissions, the memberobviously reserves until they have been received or the date for their delivery has passed.

If there is a negative decision, that is if the Board decides that the claimant is not aConvention refugee or a person in need of protection, the Board is required to give reasons.

If the decision is positive, counsel should advise the claimant that he or she has 180 days tosend in his or her application for permanent residence.

If the decision is negative, counsel should discuss the alternatives with the claimant. For aclaimant at risk, the two primary alternatives are an application to Federal Court for leaveto commence judicial review proceedings, or they can make an application under PRRA(Pre-Removal Risk Assessment). The alternatives are not mutually exclusive.

There are strict limitation periods in both procedures, but the Federal Court limitationperiod starts with the receipt by the claimant of the written negative determination andreasons. An Application for Leave must be filed with the Federal Court and served on theDepartment of Justice within 15 days of the claimant being notified of the negative decision.

An application for PRRA must be filed within 15 days of receiving a notification fromCanada Immigration that the claimant is removal ready. The time does not start countingwith receipt of the RPD decision; the notification may be weeks, months, or even yearsaway. The last would be rare, but it could happen in the case of a moratorium country; amoratorium country being a country on which Canada has imposed a temporarysuspension of removals.

Other Matters

Designated representativeThe IRB appoints a designated representative as soon as possible to look after the interestsof any claimant under 18 years of age. If a parent is available, he or she is often appointed asthe designated representative. If the minor claimant has no parents in Canada, the Boardusually appoints a relative, if one is available, or someone from the claimant’s ethniccommunity. If counsel becomes aware of a conflict with the designated representative, he



or she should advise the Board of the conflict and request that a new designatedrepresentative should be appointed.

A designated representative may also be appointed for someone who is unable toappreciate the nature of the proceedings, usually due to mental illness. If counsel is of theopinion that the claimant is mentally ill or cannot appreciate what is going on, he or sheshould notify the Board of the need for a designated representative without delay.

If counsel is aware of a suitable designated representative for the claimant, counsel mustprovide the person’s contact information in the notice. Counsel does not have to notify theBoard in the case of minors whose claims are joined with the claim of someone 18 or older.

The role of the designated representative is to act in the claimant’s best interests, to assistthe claimant with making and attending appointments, and to ensure that the claimantunderstands the nature of the proceedings.

WitnessesIn some cases, a witness may be helpful in order to establish a claimant’s identity or anotheraspect of the claim, such as political involvement. Expert witnesses with knowledge ofspecific country conditions or political parties can be very helpful at a hearing, especially iftheir testimony covers areas that are not well-documented.

It is necessary to tell the IRB at least 20 days before the hearing that witnesses will be calledto give evidence and what these witnesses are expected to say about the claim. If an expertwitness will be used, his or her resume has to be submitted within 20 days also. Witnessesusually enter the hearing room only when they are about to give evidence.

Another way to provide witness evidence is through solemn declaration or affidavit. Anexample of an affidavit of identity is attached at Appendix C – Affidavit of Identity on page 52.It includes the degree to which the witness knew the claimant in the home country, some detailabout their relationship, as well as the witness’ status in Canada.

The Board seems to prefer evidence from either permanent residents or Canadian citizens, butif another claimant is the only one who can give evidence, that person should be considered. Asa courtesy, that person’s counsel should be advised of your intention. Where an expert witnessis outside of Canada and it would be prohibitive to bring them to a hearing, his or her evidencecan also be provided in report or affidavit form. Counsel can also look into the possibility of ateleconference with such a witness.

Abandonment of a claimThe statutory authority for abandoning claims is set out in s.169 of IRPA:

Abandonment of proceeding

168. (1) A Division may determine that a proceeding before it has been abandoned ifthe Division is of the opinion that the applicant is in default in the proceedings,including by failing to appear for a hearing, to provide information required by theDivision or to communicate with the Division on being requested to do so.



Counsel should be aware that the Board may take the position that s.168 gives it widerpowers than before to abandon cases and that “in default” may not necessarily include anelement of intention.

The two most common situations in which the Board takes steps to abandon a claim arewhen the claimant has not filed a PIF within the allowed 28 days (or within the time periodallowed by an extension of time) or when the claimant has not appeared for a hearing.

With one exception, before abandoning a case the Board must provide the claimant with achance to explain why the claim should not be abandoned. If a claimant is present at ahearing, the Board can ask the claimant to do so on the spot if the Board thinks it is fair todo so. In other cases, the Board has to notify the claimant in writing of a “special hearing.”(Rule 58) This special hearing is more often known as an “abandonment hearing” or a“show cause hearing.”

The single exception to the notice provision is where there is no counsel on record, and theBoard has no address for the claimant. This lack of contact information could arise wherethe claimant has no address to give to the immigration officer when the claimant makes hisor her claim, and the claimant fails to notify the IRB when he or she gets an address.

A particularly risky situation is where the claimant is not found eligible when he or shearrives at the port-of-entry, but is allowed into Canada. If deemed eligibility takes placeafter 72 hours, the claim could be abandoned without a claimant even knowing that claimhad been referred to the Board! This would, however, be an appropriate case for anapplication to reopen (see Remedies if case is abandoned on page 36).

The Federal Court has ruled that a key element in deciding whether a claim should beabandoned is whether the claimant is showing an intention to pursue their claim. There issome indication that the Board wants to take a broader view of the meaning “in default ofproceedings”.

If the show cause hearing is because of a late PIF, the claimant will need to explain whatsteps he or she took to file it on time. If the request for an extension of time is filed after thedue date of the PIF, the Board will consider that request at the show cause hearing only. Incases where there has been no extension of time granted, where it has not been possible tosubmit the PIF within the 28 days, it is wise to file it as soon as possible. It is risky practiceto wait until the “show cause hearing” because the Board could take the view that theclaimant has been in default of the proceedings.

If the show cause hearing is because of a failure to attend at a hearing, the claimant needs toexplain why he or she did not attend. If it is for a medical reason, medical evidence oughtto be presented. A letter from a doctor which ties the medical condition to an inability toconcentrate or testify at a hearing, or to even get to the hearing, is usually going to be morepersuasive than a letter which simply indicates that the person was sick.

If the failure to attend is because the claimant did not receive notice of the hearing, evidenceshowing that the claimant kept the Board informed of his or her correct address isimportant. Hence, when notifying the Board of a change of address, copies should be keptof the correspondence, or better yet, a fax receipt.



Remedies i f case is abandonedIf the Board declares a claim to be abandoned, there are two remedies. The claimant canapply for leave to commence judicial review proceedings at the Federal Court, or theclaimant can apply to the RPD to reopen the claim.

When reopening at the Immigration and Refugee Board the two key rules are theapplication rule, Rule 44, and Rule 55.

REOPENING A CLAIM OR APPLICATION

Application to reopen a claim

55. (1) A claimant or the Minister may make an application to the Division to reopena claim for refugee protection that has been decided or abandoned.

Form of application

(2) The application must be made under rule 44.

Claimant’s application

(3) A claimant who makes an application must include the claimant’s contactinformation in the application and provide a copy of the application to the Minister.

Factor

(4) The Division must allow the application if it is established that there was a failureto observe a principle of natural justice.”

Reopening at the RPD is limited to situations where the claimant was denied natural justice.The most frequent example is where the claimant was not given notice of the “show cause”hearing. Where the claimant has shown that there was a denial of natural justice, the Rule55 (4) states that the Board must re-open the case.

The Federal Court says that to establish a breach of natural justice in such situations, theclaimant must put forward clear and convincing evidence that through no fault of theirown the claimant did not receive the hearing notice. (See Stumf v. Canada, IMM-5975-99,October 30, 2000).

On the other hand, if the Board is relying on the address it has on file to show that it hasgiven notice to the claimant, it must present evidence to show that that address originatedwith claimant. In Zaouch [1996] F.C.J. No. 982), the Court said that it is not enough for theBoard to merely present evidence about the address they have in their file without evidenceto show that the information came from or on behalf of the claimant.

It is worthwhile to obtain copies of the Notice to Appear and the abandonment decisionfrom the Case Officer at the RPD. In addition, find out to which address each of thesedocuments were sent. Contact the case officer to obtain the Statement of Service. Alsogather any documents the claimant has in which he or she has conveyed his correct addressto the Board.



In some instances, the claimant may have notified only CIC of the change of address, notbeing aware that the CIC and IRB are distinct. In such a situation, some proof that theclaimant has provided CIC with the correct address can be helpful. Documents orenvelopes from CIC with the correct address are examples of evidence which can be usefulin showing that the claimant has had the intention of providing of his or her correctaddress.

This latter scenario is likely less common now that even inland claims are being referred tothe Board more quickly than before. In the past, weeks or even months could pass beforethe referral, during which time the likelihood that the claimant changed addresses washigh.

In many cases where the claimant did not receive the notice to appear for the “show cause”hearing, the claimant also did not receive his or her PIF. In such cases, it is advisable tocomplete and file the PIF along with the application, or separately.

Although there does not appear to be anything in IRPA or the RPD Rules requiring this, itmakes sense to do so. Essentially the application is seeking to show that but for the lack ofnotice the claimant would have been in compliance.

Rule 44 applications must be in writing and be made without delay. It is essential that thematerial be served on the Minister of Citizenship and Immigration. The application shouldstate what it is that the claimant wants -- the case to be reopened. The application alsoneeds to show the reasons why the Board should allow the application. There is arequirement that the evidence supporting the application be given by way of affidavit orstatutory declaration.

In addition to the Board’s failure to give notice, natural justice encompasses other areas ofserious unfairness. One example is where the claimant was not given an opportunity topresent his or her case. Another is where there were serious interpretation problems at thehearing.

Finally, in some cases negligence by counsel which caused claimant to lose their chance fora hearing can be seen as a breach of natural justice. (See Shirwa v M.E.I., [1994] 2 F.C. 51)

A sample application to reopen is provided in Appendix F – Sample Application to Re-Open on page 75.

Federal CourtAs mentioned, the other remedy for review of an abandonment decision is going to FederalCourt Trial Division. Compared to a reopening at the Board, the disadvantages are:

• The procedure is more formal,

• There are strict time limits (15 days from the date of notification of the decision in whichto file a leave application),

• There is a $50 filing fee, the procedure is more cumbersome because it involves firstobtaining leave, and



• It is slower.

On the other hand, the grounds for review are wider than just natural justice. In addition,even in cases of breaches of natural justice based on lack of notice, if removal is imminent,such that seeking a stay of removal may be necessary, it is better to go to Federal Court sothat there will be an underlying procedure on which the stay can be sought.

Note that neither remedy -- a reopening at the Board, or an application to Federal Court forjudicial review -- automatically stays removal.

WithdrawalWithdrawal is a decision by the claimant to end his or her case. It involves the claimanttaking action to notify the Board of his or her intention. The claimant needs to notify theBoard in writing or in person at the hearing.

Situations in which a claimant might want to withdraw a claim include the claimantwanting to return to his or her country or the claimant having gained status through someother means such as sponsorship or H&C.

Under the former Immigration Act, withdrawing a claim was at the sole discretion of theclaimant. Under s.168 of IRPA, the Board has a limited discretion to refuse to allow awithdrawal of the claim, but only where substantive evidence has been taken in theproceedings.

168. (1) ...Abuse of process

(2) A Division may refuse to allow an applicant to withdraw from a proceeding if it isof the opinion that the withdrawal would be an abuse of process under its rules.

The RPD Rules, in particular Rule 52 states in which circumstances withdrawal can orcannot be an abuse of process.

WITHDRAWAL

Abuse of process

52. (1) Withdrawal of a claim, or of an Application to Vacate Refugee Protection oran Application to Cease Refugee Protection, is an abuse of process if withdrawalwould likely have a negative effect on the integrity of the Division. If no substantiveevidence has been accepted in the proceedings, withdrawal is not an abuse ofprocess.

Before IRPA a claimant could withdraw at will. There was some abuse, because there werecases where claimants withdrew their cases after all the evidence was heard at a hearing,but before the decision was made.

Now, if no substantive evidence has been accepted, the claimant can still withdraw his orher claim simply by notifying the Board in writing, or orally at the proceedings. If



substantive evidence has been taken, however, the claimant must bring an applicationunder Rule 44.

The question of what it means for substantive evidence to be accepted has been answeredby the Federal Court. In the Federal Court of Appeal case, Hernandez v. M.C.I., Appeal No.A-547-90, [1993] F.C.J. No. 1008, substantive evidence received is used to mean that theevidence had actually been introduced at a hearing. In that case, the hearing hadprogressed to the point where the PIF was sworn to by the claimant.

The mere filing with the Immigration and Refugee Board registrar of a personalinformation form does not mean substantive evidence has been accepted in theproceedings. Were that the case, the rule allowing a claimant to withdraw as of right byindicating his or her wish to do so at a hearing would not make sense, since except in thecase of abandonment hearings the PIF would have been filed.

Withdrawal is a serious step that brings the claim to an end. Before counsel conveys aclaimant’s desire to withdraw to the Board, counsel should get written instructions from theclaimant. To the best of his or her ability, counsel should make sure that the claimant is notmaking the decision because of depression or mental illness.

Reinstatement of claim after withdrawalA claimant who withdraws their claim can apply for reinstatement provided the claimanthas not left Canada. To do so, a written application pursuant to Rule 44 is required. Rule53 provides that the Board must allow the application if there has been a denial of naturaljustice or it is otherwise in the interests of justice to allow the application.

Note that, under s.101(c) of the Act, a claimant who withdraws his or her claims, leavesCanada, and then returns to Canada, is not eligible to make another refugee claim. Uponreturn, that person could only make an application for a Pre-removal Risk Assessment (PRRA).



Appendix A – Sample Letters

Notification of counsel and request for POE/CIC notes............................................................. 41

Notification to client that change of venue granted..................................................................... 42

Letter to client with copy of filed PIF............................................................................................. 43

Letter to client where abandonment hearing has been ordered ................................................ 44

Letter to client advising of intention to get off record ................................................................. 45

Notification to client that you will no longer represent him/her.............................................. 46

Letter to IRB to be removed as counsel of record......................................................................... 47

Letter to client notifying of hearing date ....................................................................................... 48

Letter to client where claim successful 49

Letter to client after unsuccessful claim......................................................................................... 50

Notification of counsel and request for POE/CIC notes

Date _______2003 Delivered by Fax: (416) ###-####

The RegistrarImmigration and Refugee Board74 Victoria Street, Suite 400Toronto, ON M5C 3C7

Dear Sir/Madam:

RE: Claimant’ s Name RPD File No:TA1-@@ @@Client ID: @@-@@

Notification of CounselRequest of POE Notes Notification of Address___________________________________________________________

Please be advised that I am counsel retained to represent Ms/. Claimant, with regards tohis/her claim to refugee protection in Canada.

I am writing to request disclosure of the Port of Entry Notes / CIC Notes and any otherdocuments forwarded to you by CIC. This will enable our office to properly prepare the client’sPersonal Information Form.

Please call my office as soon as the documents are ready and I will arrange for a courier to pickthem up.

My client’s present address is:

@@Toronto, ON.@@Tel:(416) @@

Could you please amend your records to reflect this address.

Thank you for your attention to this matter. Should you have any question, please do nothesitate to contact me.

Yours Truly,

@@ @@

Barrister and Solicitor

Notification to client that change of venue granted

Date xxx, 2003

A.B.

Anytown, ON

Dear Mr/Ms Claimant’s Name,

RE: Your File No: ###

CHANGE OF VENUE APPLICATION

Please be advised that your application for change of venue from Vancouver to Toronto has beengranted.

Enclosed please find a copy of the letter from Immigration and Refugee Board Vancouver, BC.regarding the decision.

Could you please contact our office as soon as you receive this letter.

You also need to inform the Immigration and Refugee Board in Toronto of your new address.

Our phone number is (416) ###-####

Yours truly,

@@ @@


Encl.

Letter to client with copy of fi led PIF

Date XX, 2002

@@@@@@ Dear Claimant,

Re: Your file No: - XX

COPY OF YOUR PERSONAL INFORMATION FORM

Enclosed please find a copy of your Personal Information Form. It was filed withImmigration and Refugee Board on __XX 2003_.

You are now able to apply for an Employment Authorisation and/or a StudentAuthorisation. The form which is called “Application to Change Your Conditions or ExtendYour Stay in Canada, may be obtained from the Citizenship and Immigration office locatedat 55 St Clair Avenue East, or from the Government of Canada Web site at:

http://www.cic.gc.ca/english/applications/visitor.html

You can obtain a copy of the form from our office.

You are required to obtain such an Authorisation prior to seeking any employment orattending any educational institution in Canada.

Our office will contact you to prepare for your hearing once a date is set.

In the meantime, if you have any question, comments or any new information about yourclaim, do not hesitate to contact us.

Yours Truly,

@@ @@


/encl

http://www.cic.gc.ca/english/index.html

Letter to client where abandonment hearing has been ordered

Date XX, 2003

Claimant’s NameToronto ON.M9V 4P1

Dear Claimant,

RE: Your file No: Notice to Appear at Abandonment Court

As you know, your PIF was not submitted on time, according to the date set by the IRB.

As a result, the Immigration and Refugee Board has sent you a Notice to Appear for theAbandonment of a Convention Refugee Claim. In case you did not get it, I am sending youa copy. The date of hearing is scheduled for XXX 2002, Room PAB1, at XX:00 AM. We willassist you with this hearing.

The purpose of this hearing will be to explain why the Personal Information Form was notfiled by the specified deadline. Failure to attend on this date may mean that your claimwould be declared abandoned. That would bring to an end your refugee claim in Canadaand a removal order against you could be enforced.

Please contact us immediately so that we can discuss this situation and prepare for thehearing.

Yours Truly

@@ @@


Encl.

Letter to client advising of intention to get off record

Date XXX, 2003

Mr./Ms. Claimant’s nameXXXXToronto, ON

Dear Claimant’s name

My office have has been trying to contact you without success for the past week. Severalmessages have been left for you but you have not returned these calls. It is important thatwe speak to you.

If you want me to continue to be your lawyer, please contact this office at once.

If we do not hear from you within 2 weeks from the date of this letter, we will assume thatyou no longer wish for us to continue representing you with your claim and we will advisethe Immigration and Refugee Board accordingly. In that case, unless you find anotherlawyer, you could be without a lawyer at your hearing.

Yours Truly,

@@ @@


Notification to client that you will no longer represent him/herDate XXX, 2003

@@@@@@ Dear Claimant’s name,

Re: Your file No: - XX

RE: OFF THE RECORD

This letter is to confirm that our office will no longer be representing you with respect toyour claim to Convention refugee status.

We will be advising the Immigration and Refugee Board that we will not be representingyou in any capacity from now on. Please find enclosed a letter to the Board advising themthat we will not be representing you anymore.

We will request that all correspondence from the Immigration and Refugee Board bedirected you personally.

In the event that you have retained new counsel could you please advise our officeimmediately.

We will also be closing your file at this office. I wish you all the best in pursuing yourrefugee claim.

Yours Truly,

@@ @@Barrister and Solicitor

Letter to IRB to be removed as counsel of record

Date XX, 2003

Delivered by Fax: (416) 954-1165

Immigration and Refugee Board74 Victoria Street, Suite 400Toronto, ON M5C 3C7

Attention: The Registrar

Dear Sir/Madam:

RE: CLAIMANT’S NAME

RPD File No: THE APPLICANT#-#####

REQUEST TO BE REMOVED AS COUNSEL OF RECORD

__________________________________________________________________

Pursuant to Rule 10 of the RPD Rules, I am writing to notify you that I am no longer able toact for (Claimant’s name) and request that I be removed as counsel of record. We will not beattending at the hearing date set for (dd/mm/yy).

[If the claimant does not have other counsel, add: All future correspondence should bedirected to the claimant.

Thank you for your attention to this matter.

Yours very truly,

@@ @@


cc: Claimant’s name

Letter to client notifying of hearing dateDate XX, 2003



RE: Your file No: NOTIFICATION OF HEARING

The hearing date for your refugee claim has been set for ( date and time ) at theImmigration and Refugee Board located at 74 Victoria Street, 4th Floor, Toronto, Ontario.

In order to prepare you for the hearing, we will be meeting with you approximately fourweeks before the hearing to review your PIF with you and then again closer to the hearingdate.

If you have received any identity documents or other documents concerning your claim,please bring them to the office as soon as you can. Documents that are in another languageneed to be translated and submitted to the Board no later than 20 days before the hearing.If we don’t do that, it is possible the Board will not accept them.

Please contact our office immediately so that we can arrange a time to meet with you.

Yours Truly,

@@ @@


Letter to client where claim successful

Date xxx, 2003



I am writing to congratulate you once again on the success of your refugee claim.

You are now entitled to OHIP coverage. Please be sure to indicate that you have been in Ontariofor over 3 months when making the application so that you can avoid the 3 months waitingperiod. OHIP may require a copy of the decision that you have been received a positivedetermination by the Immigration and Refugee Board.

You have 180 days from the date of your positive decision to file your application forPermanent Residence with Citizenship and Immigration Canada. Failure to file the applicationduring this period may jeopardise your right to apply for permanent residence. Please ensurethat all the relevant documents and the fee receipt is enclosed or the application will bereturned to you. However, even if you do not have the fee, it is best to still send yourapplication to Citizenship and Immigration Canada within the 180 days, since it will confirmyour intention to apply for permanent resident status.

Our office may be able to assist you in completing the Application for Permanent Residence, butthis can only be done shortly after the decision is rendered. If we do not hear from you within____ of receiving the decision, we will assume that you do not require our services in thismatter and will be closing the file.

On behalf of our office I wish you good luck in your future endeavours.

Yours Truly

@@ @@


Letter to client after unsuccessful claim

Date XX, 2003

Claimant’s nameXXXXToronto, ON


RE: Your File No:

REFUGEE CLAIM___________________________________________________________________We have just received the decision regarding your refugee claim from the Immigration andRefugee Board. Unfortunately the Board has found you not to be a Convention refugee nora person in need of protection.

I would like to speak to you to discuss your options. One option would be trying to reviewthe decision at Federal Court. If you choose that option, you will need to file a notice withthe court no later than 15 days after you were notified of the Board’s decision.

Since the original Legal Aid Certificate covered only the refugee hearing, you will need tore-apply for Legal aid coverage for such a step.

If you choose not to seek review of the Board’s decision, the removal order made againstyou when you initially made your refugee claim will become effective, and CanadaImmigration can start to take steps to remove you.

Please contact us immediately upon receipt of this letter so we can discuss this matterfurther.

Yours truly,

@@ @@




Appendix B – Sample IRB Screening Form



Appendix C – Affidavit of IdentityIRB File Numbers: TA1-,

In the Immigration and Refugee BoardRefugee Protection Division

In the Matter of:

A.B.É

A F F I D A V I T

I, Stuart Bailey, presently of the City of Toronto, in the Province of Ontario, make oathand say as follows:

I am currently residing at 123 Deadend Street in Toronto. I was born in Bigtown, Fredonia onJanuary 14, 1957. I arrived as a landed immigrant in Canada in 1980. I am now a citizen ofCanada. Attached to this affidavit as Exhibit “A” is my birth certificate from Fredonia.Attached to this affidavit as Exhibit “B” is my Canadian passport.

I knew A.B. in Fredonia. Her older brother, Randolph, and I were very good friends. I used tovisit their house often, and I would often see A.B. there. The last time I saw her there was a fewdays before my departure for Canada, when I was saying goodbye to my friends.

I met A.B. in Canada in March of this year. I was at the Fredonian Community Centre, where Isometimes work as a volunteer. I began chatting with her, and we talked about where we hadlived in Bigtown. When she mentioned her address, I asked her if she was Randolph’s sister. Aswe talked, I realized she was A.B. Although many years have gone by I am certain she is theA.B. I knew in Bigtown.

Since that meeting we have been in touch regularly. I often see her at the Community Centreand we have been at each other’s homes for holidays.

I make this affidavit in support of establishing A.B.’s identity and for no other or improperpurpose.

Sworn before me in the city of )?Toronto in the Province of )?Ontario , this _ th )?______ day of _________, 2003 )? ____________

Stuart Bailey__________________________A Commissioner, etc.



Appendix D – Sample Submissions from aGender-Based Claim� NOTE: Counsel might also want to have regard to the Compendium of IRB decisions dealing withWomen Refugee Claimants fearing gender-based persecution --http://www.cisr.gc.ca/en/about/divisions/rpd/compendium/index_e.htm -- released bythe IRB in Winter 2003.

IN THE MATTER OF THE CLAIM TO CONVENTION REFUGEE STATUS OF A.B.

SUBMISSIONS

Introduction

It is submitted that the PIF and oral testimony of the claimant along with thedocumentary evidence show that she has a well founded fear of persecution in hercountry of nationality, Fredonia. Further there is a nexus between her fear ofpersecution and at least one of the enumerated grounds, namely particular social group- that group being women victims of domestic violence in Fredonia - or Women inFredonia.

Although “re-availment” has been indicated as an issue on the screening form, pleasenote that Ms.A.B. never returned to Fredonia after she left that country. She didhowever return to her husband on several occasions after she had left him. In thisregard I direct you to the article in the Counsel package which speaks to this issue andexplains why such actions do not in and of themselves show a lack of subjective fear.Indeed the Supreme Court of Canada in Lavallee accepted the existence and impact of“battered wife syndrome” as a reasonable explanation for such actions.

R. v. Lavallee, [1990] 1 S.C.R. 852

It is also clear that her husband is still interested in Ms. A.B. as evidenced by hisinquiries and attempts to reach Ms.A.B. by calling her mother’s house in Canada. Youwill note that although her husband has made threats regarding the custody of her son,he has not tried to divorce her.

The concerns identified by the Member by the end of the hearing were:

(a) subjective fear: The delay in applying for refugee status in Canada

(b) credibility: In general terms, no specific instances of problems withcredibility were identified.

http://www.cisr.gc.ca/en/about/divisions/rpd/compendium/index_e.htm



(c) objective basis: IFA in other parts of Fredonia; Protection; Nexus

SUBJECTIVE BASIS FOR THE CLAIM

The claimant’s subjective fear is demonstrated by her actions in her attempts to separatefrom her husband, her attempts in Fredonia to get police protection and finally herfleeing from Fredonia to make a refugee claim in Canada. Please note that she has alsosubmitted a psychological report and also a report from the therapist who provided herwith ongoing counselling after her arrival in Canada - these also serve to document asubjective fear of persecution in Fredonia and also in detailing consistent psychologicalsequelae of domestic violence, they corroborate the existence of past incidents ofpersecution.

Delay

Delay in making a refugee claim in Canada is not in itself a decisive factor in assessingsubjective fear, but it is a relevant consideration.

Huerta (1993), 157 N.R. (FCA)

Delay may point to a lack of subjective fear of persecution but the circumstances causingdelay must be examined on a case by case basis in order to determine whether the delaycan be said to be an indication of lack of subjective fear.

Tung (1991) 124 N.R. 388 (FCA).

The traditional presumption respecting delay cannot be applied to female refugeeclaimants who do not know they are entitled to claim refugee status on the ground ofspousal abuse. In Williams the Federal Court Trial Division found that it was a seriouserror for the tribunal to apply the traditional presumption in cases of those seekingrefugee status on, what might be called traditional grounds to the applicant’s situationwhich was as a battered spouse applying for refugee status on similar grounds asMs.A.B.’s.

Williams (30 June 1995), No. IMM-4244-94 (FCTD) at 1-3

Ms.A.B. testified that she did not know about her option of making a refugee claimupon arrival and did pursue that option as soon as she knew about it. In any eventduring the time that Ms.A.B. was in Canada she had a valid visitor’s visa and thereforewas not in danger of deportation to Fredonia. (Until just a short time before she actuallymade her claim despite the fact that she had consulted with lawyers as to her options.As the Federal Court noted in Williams until a short while ago most lawyers were notaware of the fact that refugee claims could be made on the basis of domestic violence.)

The Federal Court has also stated that a psychiatric assessment can be supportive of arefugee claimant’s explanation for her delay in applying for refugee status.



Diluna (14 March 1995) Imm-3201-94 (FCTD) at 1, 6

In her PIF and in her oral testimony she described her life with her husband and theexplanation for the length of time she took to even leave the relationship. Thisphenomenon is described in the counsel package on domestic violence generally andalso this idea of “battered wife syndrome” has been accepted by the Supreme Court ofCanada in criminal cases.

Lavallee, supra

Thus, it is submitted that Ms.A.B. has given an entirely credible explanation for her veryshort delay in claiming refugee status in Canada.

Credibility

The two methods for testing the credibility of a witness’ oral testimony are by anevaluation of the witness’ general demeanour while testifying; and by the internalconsistency of the witness’ testimony with known or undisputed facts. The subjectivebasis of the claim is supported when an assessment is made of the credibility of theclaimant. It is submitted that the claimant has satisfied both methods for testing her oraltestimony.

First in terms of general demeanour, the claimant’s oral testimony was neither evasive norexaggerated. She answered the questions put to her by all parties to the best of her ability. Iask that the Member keep in mind the letters from the various health professionals and alsothe Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-RelatedPersecution (http://www.cisr.gc.ca/en/about/guidelines/women/index_e.htm) whichstate that women in domestic violence situations find it difficult to give testimony.

The Member did not identify any specific instances of inconsistency or any concerns theyhad as to the claimant’s testimony.

Federal court rules re: credibility

In making an assessment on credibility I would also ask the Member to keep in mind thefollowing principles as laid down by the Federal Court:

(a) when a claimant swears to the truth of certain allegation, this creates a presumption thatthose allegations are true, unless there is reason to doubt their truthfulness, if the Boardrejects the claimant’s evidence, it is bound to give reasons.

Okyere-Akosah v. Canada (6 May 1992), Action No.A-92-91 (FCA)

(b) a tribunal must have regard to the totality of the evidence before it when assessing thecredibility of the refugee claimant. All explanations provided by the claimant dealing withapparent inconsistencies must be considered.

Owusu-Ansah v. Canada (1989) 8 ImmLR (2d) 106 (F.C.A.)

On this point please note that Ms. A.B. has generally been consistent once the long timeframes and inherent difficulties of the proceeding are taken into account.

http://www.cisr.gc.ca/en/about/guidelines/women/index_e.htm



(c) a tribunal cannot base credibility findings on irrelevant considerations.

Attakora v. Canada (1989) 99 NR 168 (F.C.A.)

For example, whether Ms.A.B. can find work in Fredonia is irrelevant to the wellfoundedness of her fear or her options for an IFA if she has to live in hiding because of fearfor her own safety and for the security of daughter.

(d) a finding that the claimant is not a credible witness is not determinative of the questionof whether the claimant is a Convention refugee. The claimant is still a refugee, whethercredible or not, if he or she satisfies the subjective and objective components of the test forrefugee status.

Armson v. Canada (1989) 9 Imm L R (2d) 150 (FCA)

(e) if the tribunal rejects some aspects of the claimant’s testimony, but accepts other aspectsof it, the tribunal must make a determination as to whether, based on the evidence acceptedby the tribunal as credible, the person would qualify as a Convention refugee. Yaliniz v.Canada (1989) 7 Imm LR (2d) 163 (FCA)

(f) doubts cast on credibility made by inferences drawn by the Member concerning theplausibility of the claimant’s testimony and not because of internal inconsistencies must bemade by reasonable inferences.

Giron v. Canada (28 May 1992) Action No. A-387-89 (FCA)

(g) A tribunal should guard against over-zealousness when attacking the credibility of arefugee claimant, particularly when that claimant has testified through an interpreter.Caution should be exercised when comparing statements made by a refugee claimant whiletestifying on different occasions through different interpreters.

Owusu-Ansah v. Canada (1989) 8 Imm L R (2d) 106 (FCA)

OBJECTIVE BASIS FOR THE CLAIM

The test which remains is, is there a reasonable chance or a serious possibility, or are theregood grounds for believing that the claimant will be persecuted on return to Fredonia?

Adjei (1989), 7ImmLR (2d) 169 (FCTD)

This test has a low threshold. Should the Member believe that the claimant will face aslightly more than a mere possibility of persecution should she return to Fredonia, then infact her fear is well-founded. The Board need not be convinced that the fear is well founded.

Ponniah v. MEI (16 May 1991) Action No. A-345-89(FCA

Madelat v. MEI (28 January 1991) Action No. A-537-89 (FCA).

The Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-RelatedPersecution represent a clear recognition that violence and discrimination against womencan constitute persecution within the meaning of the Geneva Convention and theImmigration and Refugee Protection Act.



A determination as to whether a woman who is a victim of such violence has a “well-founded fear of persecution” depends on an assessment of four issues relating to thedefinition of a Convention Refugee:

(a) whether the treatment amounts to persecution;

(b) whether there is a linkage between the persecution and one or more of the grounds setout in the definition;

(c) whether adequate state protection is available to the claimant; and

(d) whether, under all the circumstances the claimant’s fear of persecution is well-founded.

A. Treatment that Amounts to Persecution

Persecution is not defined in the 1951 Convention Relating to the Status of Refugees or the1967 Protocol Relating to the Status of Refugees. The UNHCR Handbook states that “athreat to life or freedom” as well as “serious violations of human rights”, if linked to one ofthe five grounds in the definition, constitute persecution.

UNHCR Handbook, para. 51

According to Professor Hathaway, acts or measures which threaten or deny fundamentalhuman rights embodied in international conventions as inalienable rights constitutepersecution.

James Hathaway, The Law of Refugee Status,(Toronto: Butterworths, 1991) at 108.

The 1966 International Convention on Civil and Political Rights (ratified by Canada on May19, 1976) sets out the fundamental rights from which no derogation is permitted, even inexceptional circumstance. These include, inter alia, the right to life (Article 6) as well as theright to be protected against torture or cruel, inhuman or degrading treatment orpunishment; (Article 7). The 1951 Convention Relating to the Status of refugees hasaffirmed the principles set out in the Universal Declaration of Human Rights, “that humanbeings shall enjoy fundamental rights and freedoms without discrimination”.

Preamble to the 1951 Convention Relating to theStatus of Refugees, United Nations Treaty Series,Vol. 189, P. 137.

The Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-RelatedPersecution outline the factors which decision makers should take into account whendetermining whether the treatment or sanctions imposed on women constitutespersecution:

The fact that violence, including sexual and domestic violence, against women isuniversal is irrelevant when determining whether rape, and other gender-specificcrimes constitute forms of persecution. The real issues are whether the violence-



experienced or feared - is a serious violation of a fundamental human right for aConvention ground and in what circumstances can the risk of that violence be said toresult from a failure of state protection.

Guidelines at p. 7.

The Guidelines further advise at footnote 11: When considering whether sexual violence ordomestic violence (which may involve both mental and physical suffering) are forms oftorture or cruel, inhuman and degrading treatment amounting to persecution, decision-makers should examine the meaning of “torture” under the UN Convention AgainstTorture and Other Cruel, Inhuman and degrading Treatment and Punishment. ThisConvention, which like the 1951 Refugee Convention incorporates the principle of non-refoulement, defines “torture” as:

any act by which severe pain or suffering, whether physical or mental is intentionallyinflicted on a person for such purposes as intimidating or coercing [her] or a thirdperson, or for any other reason based on discrimination of any kind, when such painor suffering is inflicted by or at the instigation of or with the consent or acquiescenceof a public official or other person acting in an official capacity. It does not includepain or suffering arising only from, inherent in or incidental to lawful sanctions(Article 1)

It is submitted that the frequency of physical brutality and the severity of psychologicalabuse should be dispositive of whether or not domestic violence is torture. Thereshould be no doubt, however, that many less severe forms of domestic violence qualifyas cruel, inhuman and degrading treatment within the meaning of the InternationalCovenant on Civil and Political Rights and the Convention Against Torture.

Case law supports the view that wife abuse and rape constitute persecution within theConvention definition. The issues of whether wife abuse is persecution under theRefugee Convention was addressed in obiter by Mahoney J. A. In Mayers (1992), 150N.R. 60 (F.C.A.) at 68:

In conclusion, in my opinion, the adjudicator cannot be said to have erred in law byimplicitly concluding that the Refugee Division might find “Trinidadian womensubject to wife abuse” to be a particular social group and fear of that abuse, given theindifference of the authorities, to be persecution.

The Refugee Division, in CRDD U92-06668, February 19, 1993, found that thefundamental human rights of the claimant, a Christian woman from Zimbabwe, hadbeen violated by her forced marriage while still a minor, and by the physical and sexualabuse she had experienced during the marriage. The Board concluded that the harmfeared by the claimant was a threat to her life or freedom, and that the abuse sheexperienced contravened the provisions of the Universal Declaration of Human Rightsand the International Covenant on Civil and Political Rights, in that it violated hersecurity of the person and amounted to cruel, inhuman, and degrading treatment.



In CRDD U93-09791, January 13, 1994, the Refugee Division determined that violenceperpetrated against a Mexican woman by her spouse amounted to persecution. CitingArticles 3 and 5 of the United Nations Universal Declaration of Human Rights, theMember concluded, at p. 6:

In our opinion the continued physical, sexual and emotional abuse which theclaimant experienced constitutes a violation of the security of person and amounts tocruel, inhuman and degrading treatment.

B. Link Between Persecution and Grounds in Refugee Definition (nexus)

It is submitted that the claimant’s persecution is linked to her membership in aparticular social group, that is women from Fredonia who is vulnerable to abuse whodo not receive adequate protection from the state authorities.

The Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-RelatedPersecution indicate that a woman may establish a well-founded fear of persecutionsolely by reason of her membership in a gender-defined particular social group andsuggest that the following considerations be taken into account with regard to suchclaims:

The fact that the particular social group consists of large numbers of the femalepopulation in the country concerned is irrelevant-race, religion, nationality andpolitical opinion are also characteristics that are shared by large numbers of people.

What is relevant is evidence that the particular social group suffers or fears to suffersevere discrimination or harsh and inhuman treatment that is distinguished from thesituation of the general population, or from other women.

A sub-group of women can be identified by reference to the fact of their exposure orvulnerability for physical, cultural or other reasons, to violence, including domesticviolence, in an environment that denies them protection. These women face violenceamounting to persecution, because of their particular vulnerability as women in theirsocieties and because they are so unprotected.

Refugee status being an individual remedy whether or not it is based on social groupmembership, the woman will need to show that she has a genuine fear of harm, that hergender is the reason for the feared harm, that the harm is sufficiently serious to amountto persecution, that there is reasonable possibility for the feared persecution to occur ifshe is to return to the country of origin and she has no reasonable expectation ofadequate national protection.

Guidelines at p. 6.

James Hathaway has asserted unequivocally that gender, though not one of the fiveConvention grounds for protection, “is properly within the ambit of the social groupcategory”. He further stated that “gender-based groups are clear examples of socialsubsets defined by an innate and immutable characteristic”. He concludes hiscomments on gender as a social group category by refuting the criticism that “gender-defined social groups” constitute too broad a spectrum; “adherence to the ejusdem



generis principle defeats such concerns, since race, nationality, religion, and evenpolitical opinion are also traits which are shared by large numbers of people”. Wherethe Court The Supreme Court of Canada affirmed these principles in the Ward decision,describing three different types of “social groups” and specifically placing genderclaims in category 1: “groups defined by innate or unchangeable characteristics”.

Canada v. Ward, [1993] 2 S.C.R. 689

Women and subgroups of women have been accepted by the Immigration AppealBoard and the Refugee Division of the Immigration and Refugee Board as social groupsfor the purposes of the refugee definition some examples of these are provided in the“Domestic Violence” package I have submitted. I have also included a domesticviolence case from Fredonia as a separate item. Since that decision was made by theCRDD, there has been no real change in the protection or status afforded to womenvictims of domestic violence in Fredoniao.

CRDD File No: U93-11130/U93-11132

C. Adequacy of State Protection

Gender-related abuse will only constitute persecution under the Convention if there isclear evidence to demonstrate that the authorities are unwilling or unable to protect theclaimant against the abuse if she returns to her country of origin. As affirmed in Ward,supra, the focus of the inquiry should be on determining whether there is objectiveevidence regarding the inadequacy of state protection.

In circumstances where there is not a “complete breakdown of state apparatus”, and inthe absence of an admission by state authorities that they are unable to protect theclaimant, the claimant must advance some evidence sufficient to constitute “clear andconvincing confirmation of the state’s inability” to protect her. The Court held thatsuch proof might consist of testimony that “similarly situated individuals were let downby the state protection arrangement” or of “past personal incidents in which stateprotection did not materialize” (per Stone, J.Al. at 2).

See also, Barkai v. Minister of Employment and Immigration Court File:Imm-6249-93, September 27,. 1994 (unreported) (F.C.T.D).

In the present case, there have been several examples provided to the board from theclaimant’s personal experience where she personally sought state protection and it didnot materialize. I reviewed the country documentation provided by the RPO and myselfit is important to keep in mind the context of widespread discrimination against womenin Fredonia and also how this culture pervades the police force known for widespreadhuman rights abuses including rape and torture, and a judicial system noted for itscorruption and lack of independence.

Ms.A.B. also gave extensive testimony with regard to her attempts at seeking protection.Clearly she did everything she could do from trying to avail herself of an internal flightalternative to undergoing all the paperwork and examinations necessary underFredonian law to get protection. And still she was unprotected. She has thus dischargedher burden of showing that the state is either unwilling or unable to protect her. She



therefore now legitimately seeks the surrogate protection that she is entitles to under theRefugee Convention and under IRPA.

Should Ms.A.B. have sought further protection beyond the police, by going to theCommission on women, etc.?

On this point of seeking further protection, please note that the Federal Court TrialDivision has found that counselling is no substitute for the absence of police protectionin a case where the applicant sought the aid of the police.

Cuffy v. MEI File No. IMM-3135-95, October 16, 1996.

In N.K v Canada (Solicitor General) (1995), 107 F.T.R. 25 at 38 Trembly-Lamer J.stated:

Further, in my opinion the consequence of this lack of action was not only tojustify an applicant’s reluctance to seek protection from the State, since hehad seen it was pointless, but as no corrective and/or punitive action wastaken it encouraged the recurrence of such incidents.Counsel for the respondent argued that in situations where the policerefused to do their duty the individual should go to a higher tribunal orapproach a different organization, such as the Human Rights Commission.

I cannot accept such a suggestion. The issue here is not merelydiscriminatory acts, which could be the subject of a complaint to a HumanRights Commission. Some of the acts alleged are criminal in nature (sexualand other forms of assault) and so are not within the jurisdiction of a HumanRights Commission. When they are victims of criminal offenses theapplicants are entitled, as in any country where the governmental systembreaks down, to go to the police and to expect that at the very least there willbe an investigation. I know of no legal system which poses a greater burdenthan that on the individual. (emphasis added)

In Risak v. MEI (1994), 86 FTR 67 at 70 Dube J. points out:

Thus, in the case at bar, the question is whether or not it was objectivelyreasonable to expect the applicant to have further sought the protection fromthe army and the police in Israel after having been so brutally rebuffed bythe very authorities from whom citizens expect protection. There is nothingin our jurisprudence to the effect that in such situations the applicant hasthe further burden to seek assistance from human rights organizations or ,ultimately, to launch an action in court against the government.(emphasis added)

Conclusion

It is submitted that the claimant gave her testimony in a direct and straightforwardmanner. Her testimony was consistent internally and was consistent with the facts setout in her Personal Information Form. Her testimony was corroborated by numerousletters from professionals in Canada, whose letters have been submitted to the Member.



In Adaros-Serrano v. M.E.I. [FCTD 93-A-124, Sept. 3, 1993], the Federal Court noted theimportance of psychological evidence in proving the claimant’s continuing fear ofpersecution in her country of origin is well-founded. Similarly in Ward and Cruz Reyesv. M.E.I. FCA A- 59- 91 March 23, 1993, the Courts have affirmed the importance ofsuch expert evidence.

The documentary evidence supports an objective basis for the Claimant’s fear ofpersecution. There is clear and convincing evidence that there is a high incidence ofdomestic violence in Fredonia and that state authorities offer inadequate protection towomen abused by their partners and former partners.

There are recent CRDD decisions which have found that women subjected to domesticviolence have a well-founded fear of persecution by reason of their membership in aparticular social group. Both the Chairperson’s Guidelines on Women RefugeeClaimants Fearing Gender-Related Persecution and Professor Hathaway, endorse theview that abused women who do not receive adequate state protection may fall within a“particular social group” under the Convention Refugee definition.

The Supreme Court of Canada, in Ward, has stated the a subjective fear combined withthe State’s inability to protect creates a presumption that the fear is well-founded. It issubmitted that Ms. A.B. has made out both the subjective and objective basis for her fearof persecution and that her fear is liked directly to her membership in a particular socialgroup of women vulnerable to domestic abuse in Fredonia.

Evidence of past persecution, although not essential, is also one of the most effectivemeans of showing that a fear of future persecution is objectively well-founded. In thiscase, the claimant has indeed suffered from past persecution being the threats to her lifeand physical integrity by her spouse. She has also suffered the threat of separation fromher son.

In terms of IFA, the claimant has testified that she does not believe there is anywhereshe can go in her country to feel safe since the evidence shows that her husband hasboth the means and willingness to track her down anywhere in the country. Living inhiding is not a reasonable IFA.

Request

Upon weighing the evidence as a whole, the Board is called to conclude that what theclaimant has experienced was persecution and that there exist good grounds forbelieving that she will be persecuted on return.

For all these reasons it is respectfully requested that Ms. A.B. be declared a Conventionrefugee.

per:

X.Y.




(Note: these sample submissions were prepared by Elsy Jetty Chakkalakal, Barrister and Solicitor,then of the Refugee Law Office, Legal Aid Ontario; some information has been changed to protect theidentity of the claimant.)



Appendix E – Sample Submissions from aClaim Based on Political Opinion

Appendix “E”

Sample Submissions from a claim involving political opinion

Claimants: XXXXXX

File Number: XXX

Dates of Hearing: XXX 2002

The following are my submissions with respect to the refugee claim of XXXXXX. His claim toConvention Refugee status is based on his perceived political opinion.

He believes that based on his membership in the Legality Party, as well as his familymembership in the Legality party, they have been targeted by the present Socialist government.He has received threats to his life, has been detained by the police and has received an ArrestNotice while he was in hiding. All of these incidences have occurred due to his politicalactivities.

Based on the present conditions in Albania, he believed that there would be more than a merepossibility that he would face persecution should he return to Albania.

At the outset of the hearing the following issues were advanced. I propose to deal with each ofthese issues in turn.

1. Identity (Personal and Political)2. Agents of Persecution3. Discrimination vs. Persecution4. State or de facto protection5. Credibility

Identity a) Personal

In Exhibit C-3, the claimant has produced the following personal documents; Birth Certificate ofthe claimant issued XXXX, Family Certificate issued XXXX, Drivers Licence issued XXXXX andMaturity Report issued XXXX. The first two documents were issued after the claimant’s arrivalinto Canada. The Maturity Diploma was issued seven years and the Drivers licence was issuedfour and half years prior to his departure.



The Panel has had an opportunity to review the originals of these documents, how they wereobtained and when the claimant received them in Canada. There is no evidence before the Panelto suggest that these documents are not valid original documents. It is submitted that personalidentity has been established that the claimant is XXXXX, citizen of Albania and resident ofXXXX.

b) Political

It is submitted that XXXX has established his political membership, his father’s membershipand their profile through the following:

1. Legality Party Membership card of the claimant (Exhibit C-3, page 16).2. Attestation by the Legality Party concerning the claimant (Exhibit C-3 page 14).3. Legality Party Membership card of XXXX (Exhibit C-3 page 16).4. Legality Party Membership card of XXXX (Exhibit C-3 page 18). 5. In the testimony of the claimant he outlined the steps he took to apply to join the party,

his activities and the activities of his father as a member of the Party. 6. He also testified that out of a total population of 35,000 people in XXXX there were

approximately 60-70 members of the Legality party there. Out of this number only 20members were active. This included the claimant and his father. The small number ofactivists of this party would only serve to focus attention on them and would increasetheir visibility and profile among the general population and the Authorities.

XXXXX’s testimony concerning his membership, activities, his father’s activities andposition has not been contradicted or challenged in any way and it has been supportedby strong original documentary evidence. It is submitted that XXXXX has clearlyestablished his membership in the Legality Party, his profile and his father’s profile andthat they would be well known in the area.

Agents of PersecutionIn his testimony the claimant outlined a number of incidences that ultimately made him fear forhis safety in Albania at the hands of the Socialist Government. These commenced in 1997 andculminated in events of June 2000 after which his he went into hiding. During this period anArrest Notice by the police was delivered to his home.

The first incident, in July 1997, was reaction of the police due to an anti-governmentdemonstration. He stated that after he attended an anti-government rally he was called down tothe police station and was beaten and was ordered to quit the party. It is clear in this incidentthat the agent of persecution was the State and that the reason for his detention was due to hispolitical membership in an opposition party.

In September 1998 the claimant was detained again by the police and ill-treated for hisattendance in an anti-government demonstration. The same is clear for the incident ofNovember 15th 1998 where he detained for three days by the police and was again ill-treated.On that occasion the police also imposed a reporting condition which lasted for the period of sixweeks. In April 2000 he was also detained by the police and detained for two days.



It is clearly evident that the antagonists in these situations were the police and therefore theState. It is further clear that the motivation for these detentions were due to his politicalaffiliation and activities.

The attack on the restaurant in March 1999 also appears to have been politically motivated. Thespecific circumstances such as the restaurant being a known meeting place for Legality Partymembers, the fact that a meeting was in progress, as well the general political climate in Albaniain that time, supports this contention.

The events of June 28th 2000 also indicate that the police were involved. The uniforms worn, thelanguage used as well as the recent preceding events strongly suggest that these two maskedmen were members of the government security forces and that their interest was politicallymotivated. The subsequent issuance of an arrest warrant in July 2000 also indicates that theclaimant was being sought by the Authorities.

It is clear from a review of the incidences that occurred to the claimant that the agents ofpersecution on these occasions appear to be the police, thus, clearly identifiable to the State. It istherefore important to examine the degree of State protection in these circumstances.

Discrimination vs Persecution

In examining this issue the Board should refer to the U.N.H.C.R. Handbook, paragraphs 53, 54,55.

In those paragraphs it is recognized that differences in the treatment of various groups do existto a greater or lesser degree in many societies. However, in certain circumstances,discrimination will amount to persecution. This would be so if measures of discrimination leadto consequences of a substantially prejudicial nature for the person concerned, e.g. seriousrestrictions on the right to earn his livelihood, practice religion, or access to normally availableeducational facilities.

Measures of discrimination may give rise to a reasonable fear of persecution if they produce inthe mind of the person, concerned a feeling of apprehension and insecurity as regards his futureexistence. Discrimination may also be found to be persecution on cumulative grounds.

In examining the present case, it is apparent that this is not a situation of treatment that wouldfall into categories greater or lesser than the norm. The treatment is clearly on the face of it,persecutory in nature. We have:

1. Detention of the claimant for political reasons in July 1997, September 1998, November1998, April 2000,

2. ill-treatment by the police during these periods of detention with orders for him to ceasehis political activities,

3. beatings and terrorisation of his family by security forces in June 2000 and thesubsequent Arrest order in July 2000,

4. The resulting feeling of apprehension and insecurity as regards his future existence.



It is submitted that the treatment experienced by the claimant as outlined above takes it out ofmere name-calling or lack of average treatment, it brings it squarely into the area of persecution.

State Protection

The following is the objective documentation regarding the situation for the Legality Party inAlbania.

In C-2 at page 94 (2001 Department of State Report) it states that Local police units report to theMinister of Public Order and are principally responsible for internal security. One of the seriousproblems involving public order and internal security is the fact that the police officers arelargely untrained and often unreliable. At page 94 it states that “police, at times arbitrarilyarrested and detained persons”.

At page 38 (DOS 2000) it states that:“The DP continued to claim that the Chairman of the Legality Party (the

Monarchists), Ekerem Spahia and 12 supporters were being tried unfairly forparticipation in the events of September 14th 1998, which followed the assassination ofthe DP parliamentarian, Azem Hajdari, by unknown persons. Spahia and the otherswere released during the year; however, their trials were pending at the year’s end.”

In the lead up to the local elections of October 1st 2000, the political situation became tense inAlbania. On page 16 is an article that stated that politically motivated attacks had increased inAlbania ahead of local elections.

Although the governing Socialist Party claimed victory, the reaction of the Opposition coalitionwas far from conciliatory and may in fact continue to exacerbate tensions in the country. Onpage 22 of C-2, it was stated that Albania’s opposition (of which the Legality Party is amember), led by the Democratic Party refused to recognize the results of local elections,denouncing what is described as serious manipulations throughout the country.

What is important in this claim as well as other claims is the impact that the severely polarizedattitudes and positions have on the stability of the country, especially given the volatility ofAlbanian society and culture. It appears that exaggerated positions of one side tend to be metwith exaggerated responses, something the Board has to recognize and bear in mind whenassessing such matters.

In the May 2001 Amnesty International Report on Albania, it confirmed at page 50 that tortureand ill-treatment most frequently take place during arrest and during detention in policecustody. At page 51 it speaks of the mutual intolerance of “position and opposition” beingreflected in police conduct. At page 53 it states that what is still lacking in Albania is a cleardetermination by the Authorities to end toleration of human rights violations by the police.

The Human Rights Watch Report 2002 found at page 86 states that the continued refusal of theopposition parties (including the Legality Party) to recognise the outcome of the generalelections has renewed political tensions in that country.



Given the forward-looking test, the continued political tensions means that the stability of thecountry is still seriously in question.

In the Response to Information request ALB 34263.e, Professor Pano states at page four of thearticle that political repression; recrimination and vengeance are very serious problems InAlbania. He confirmed at the time that the local elections held the potential for re-ignitingpolitical passions.

Professor Fischer, on the same page, also states that in April 2000 political violence was still asignificant factor. He also stated that political differences and political affiliation tended to stillbe very personal and that people saw things in black or white terms, “ you are either with us oryou are a traitor and should be in jail”.

On page three it states that the relations between the parties are largely personal since“everything in Albania is personal”. On page 5 its states that there are elements within theLegality Party who were so closely associated with the DP in the early years of policydevelopment that they are also targeted.

On page five, Prof Pano notes that Legality Party members, especially in the north have becomeirritants to the authorities, who have probably have reacted a little more harshly when dealingwith them. He added that the Legality party is not a very popular party in Albania.

On page 6, in his discussion on the Association of the Formerly Persecuted, he states that “themore militant, outspoken elements of that organization are certainly verbally harassed, told toquit their agitation. He also indicated that this was also true for smaller political parties, andthat these sorts of occurrences tend to happen only to those who are particularly vocal.”

Based on the review of the documentary evidence the following is clear:

1. That the relations between the Socialist Party and the Opposition are increasinglyantagonistic,

2. The Legality Party is a part of the Opposition, 3. That the police are unreliable and have been involved in attacks on members of the

Opposition,4. The political situation in Albania has intensified as a result of the local elections and

general election,5. Politics is intensely personal and is seen in a black and white context,6. The Legality Party is seen as an irritant, and the more vocal tend to be targeted as well as

those with early ties to the Democratic Party.

It is therefore clear that State protection does not adequately exist in the present circumstances.

The Response to Information Request ALB 34263.e on page 4 that states that the politicalviolence is lower level violence (as opposed to directed by cabinet), and motivated by politicaland personal problems. Thus, the activities and visibility of the claimant would make him a



target for members or supporters of the Socialist Party given the small, vocal and active numberof Legality members in XXXX.

Federal Court Rules: CredibilityIn making an assessment of credibility in this case, I ask that the Panel to keep in mind thefollowing principles as set out by the Federal Court.

(a) when a claimant swears to the truth of certain allegation, this creates a presumption thatthose allegations are true, unless there is reason to doubt their truthfulness, if the Boardrejects the claimant’s evidence, it is bound to give reasons.

Okyere-Akosah v. Canada (6 May 1992), Action No.A-92-91 (FCA)

(b) a tribunal must have regard to the totality of the evidence before it when assessing thecredibility of the refugee claimant. All explanations provided by the claimant dealingwith apparent inconsistencies must be considered.

Owusu-Ansah v. Canada (1989) 8 ImmLR (2d) 106 (FCA)

(b) a tribunal cannot base credibility findings on irrelevant considerations.

Attakora v. Canada (1989) 99 NR 168 (FCA)

(c) a finding that the claimant is not a credible witness is not determinative of the questionof whether the claimant is a Convention refugee. The claimant is still a refugee, whethercredible or not, if he or she satisfies the subjective and objective components of the testfor refugee status.

Armson v. Canada (1989) 9 Imm L R (2d) 150 (FCA)

(d) if the tribunal rejects some aspects of the claimant’s testimony, but accepts other aspectsof it, the tribunal must make a determination as to whether, based on the evidenceaccepted by the tribunal as credible, the person would qualify as a Convention refugee.

Yaliniz v. Canada (1989) 7 Imm LR (2d) 163 (FCA)

(e) doubts cast on credibility made by inferences drawn by the panel concerning theplausibility of the claimant’s testimony and not because of internal inconsistencies mustbe made by reasonable inferences.

Giron v. Canada (28 May 1992) Action No. A-387-89 (FCA)

f) A tribunal should guard against over-zealousness when attacking the credibility of arefugee claimant, particularly when that claimant has testified through an interpreter.Caution should be exercised when comparing statements made by a refugee claimant whiletestifying on different occasions through different interpreters.



Owusu-Ansah v. Canada (1989) 8 Imm L R (2d) 106 (FCA).

In her observations the Refugee Claims Officer raised a number of concerns which I willcomment on in turn.

1. Is there a contradiction between the information in the Personal Information Formand Port of Entry Notes ?

The claimant testified that when the Immigration Officer interviewed him on XXXX 2000. Theentire examination took 40 minutes. There was no interpreter physically present but one was onthe phone.

The claimant indicated that he spoke no English and that the interpreter spoke a dialect ofAlbanian. He testified that he had difficulty understanding the interpreter but did understand“simple questions”. He further testified that he advised the interpreter of the difficulty that hewas experiencing, but was advised to just answer the questions. It is unknown whether theinterpreter advised the officer of the dialect problems.

XXXXXX testified that the interpreter did not read the notes written by the officer back to himand that the officer was only writing what was conveyed to him by the Interpreter. He statedthat he outlined all his problems and was asked by the officer only about the last incident inJune 2000.

He stated that he did talk about the Monarchy but could not understand the interpreter whoagain just said to him to answer yes or no to the questions by the officer.

The proper preparation of a Personal Information Form takes many hours. Given the extremelyshort time frame allotted to the claimant for the interview at the port-of-entry(and this wouldcover other matters, not only the basis for the claim), there is absolutely no way that theclaimant could be expected to accurately outline all of the details of his fear at that interview.

Claimants also take their direction from the officers who often advise them that they canexpand on their claims at the hearing and only desire a one-line statement. Thus, the lack ofdetail cannot be held against the claimant.

I further remind the Board of the decisions of Singh, Armik v. M.C.I. (F.C.T.D., no. IMM-2835-95), and Kanapathipillai,Bagawathy v. M.C.I. (F.C.T.D., no. IMM-5186-97) and ThambirasaSakuntala v. M.C.I. (F.C.T.D., no. IMM-1224-98). In these cases it was stated

1. that it was reasonable in a short interview for the claimant to only answer the questionsasked by the officer,

2. to remember that what is written is chosen by the officer not the claimant, 3. there is no expectation that the brief lines of notes are meant to tell the whole story.

The claimant was clear in his testimony, he had difficulty with the interpreter and onlyunderstood simple questions.



Questions such as asking names, address and birth dates are not rich in language capability assuggested by the R.C.O., but in fact are at the extremely simple end of comprehension. In fact,the examples given are the very items first examined when someone is only beginning to learn alanguage. It is questions regarding political ideology or complex issues of a case that requirecomplete linguistic understanding in both languages.

There is no evidence that the claimant was evasive. He stated that he told everything regardinghis problems to the interpreter. The interpreter may not have understood the claimant due tothe dialect differences, may have not had the same education level and did not understandwhat she was being told, or did not have the necessary English vocabulary and so filtered orsimplified what was being transmitted to the officer.

Secondly, all the “rich” information cited by the RCO such as name, last name, parent’s nameand place of birth are indeed found in the Birth Certificate of the claimant and so can betranslated, thereby providing this information.

Based on the above it is submitted that there is no contradiction and this is not an issue.

2. Was the Claimant in Albania after 1996 ?

The claimant in his testimony states that he was in Albania until he left the country in August2000.

He stated that he worked with a person named XXXXX as a painter up until 1996. After thattime he indicated that he worked part-time as a painter and a mechanic after that on a casualbasis.

The R.C.O. states in her submissions that the claimant did not provide the names of thecompanies that he worked for after 1996. It must be stressed that the claimant was never askedto provide names of the companies by either the R.C.O. or the Board. This failure to ask cannotbe used against the claimant.

After the conclusion of the Hearing the claimant obtained letters from the companies thatemployed him on a part-time basis. These confirm his presence in Albania in the year 2000.

1. We have the sworn statement by the claimant that he was in Albania until August 2000,2. The R.C.O. has produced no evidence to counter this fact,3. We have a Certificate from XXX company confirming his part-time employment with

that company from June 1996 until February 1997,4. We have a Certificate from XXX company confirming his employment as a transport

worker from May 1997 until December 1998,5. We have a Certificate from the XXX company confirming his employment from

September 1st 1999 until May 31st 2000,6. A Hospital release form for the client confirming that he was ill from bronchitis

influenza in January 1999, thereby placing him in Albania at that time.



In the CIC interview he was described as a self-employed painter. Again, this informationwould have been filtered through the interpreter. We have no information what were thecontractual arrangements made between the claimant and the various companies and frankly itis not relevant to the case at hand. It is sufficient to note that in both the testimony of theclaimant and the Certificates by the companies there is evidence that he was in Albania up untilAugust 2000.

It must be pointed out that Work Books are not obligatory in Albania. Previously they weremandatory for all employees in State operated companies and continued to be used to someextent in those companies after privatisation. However, privately owned companies createdsince the fall of the Communist regime no longer necessarily used them. Thus the absence of theWork Book in the present case is not unusual.

3. Parents in Albania

In his testimony the claimant stated that he was in contact with his paternal uncle; XXX on amonthly basis since his arrival into Canada. His uncle lives in XXX.

It was the claimant’s testimony that after he left Albania, his parents left XXX and moved to thevillage of X. This is the village of his father’s relatives and is remote and without a telephone.Any information concerning his parents comes from his uncle who simply states that they areokay. The claimant has no further information.

I challenge the contention that the claimant was evasive in this matter. All that he has beeninformed is that his parents are well. There is no information for him to be evasive about if hehas not been told anything. Further, the R.C.O appears to have either misread or misheard thetestimony, nowhere did the Claimant indicate that his father was dead and he was clear that itwas his understanding that the parents were in the village of X.

Finally, it is submitted that whether the claimant’s parents are still in Albania at the presenttime is simply not relevant to this claim and its determination.

4. Failure to advise the Legality Party of the Call In Notices and Incidences

The claimant testified that he did not formally advise the Legality party of what had beenhappening to him. He did testify that his father knew about all these incidences.

While the claimant is clear that he did not personally advise the Party branch, it may be that hisfather passed on the information or may have become known to the Party through a variety ofother sources. On page 11 in the final paragraph it states:

“At that time I was held for three days and I was badly beaten. Many othermembers of the Legality party had also been called down and were being interrogated”

Some of these other Legality members may have advised the Party of what was happening andmay have provided the Party with the names of the effected members, including the claimant.



His friend A was also experiencing the same problems as the claimant and could have advisedthe Party of this fact as well.

In C-3 on page 14 is the translation of the letter from the Legality Party. In that letter it states inthe last paragraph that “ His active participation in fulfilling his duties assigned by our partyhas put his life in danger. In the summer of 2000 he was forced to flee Albania”. It is clear thatregardless of whether the claimant told the Party or not, they are aware that he has beenexperiencing problems due to his political activities.

We have to remember that this is a small party with small numbers, especially in XXX. Thus,knowledge of what was happening would be easily known without any formal requirements ornecessity to report.

Given that his father knew what was happening, the same events were happening to otherParty members, including his best friend, would have negated the necessity of the claimant toformally advise the Party. It is submitted that this should not be an issue.

5. Similarities in portions of the Narrative with the PIF of A

First, let me point out, the similarities were NOT put to the claimant for his comments. All thatwas asked was whether he spoke to A regarding his case while here in Canada. Therefore Iwould submit that this couldn’t be an issue in the case.

In any event I examined those sections of the narratives cited by the Refugee Claims officer inher observations and wish to comment.

Paragraphs 22, 23, 24, 27 are historical standard general allegations made by all oppositiongroups in Albania at this time, including the Legality Party. They are non-client specific factsand are included to assist the panel in outlining the general conditions existing in Albania atthat time. For instance, paragraph 22 of A’s PIF and Paragraph 16 of XXXXXX’s PIF states thatthe Socialist Party through manipulation and the promise to pay back all the lost pyramidscheme money won the June 1997 elections.

These historical additions are established well-known facts. If these facts are deemed as beingformulaic by the RCO that is her opinion only and simply irrelevant to the determination of thisclaim.

The other paragraphs are describing events that occurred to both of the claimants. They arequite clear that the other person was there on these occasions.

I have examined those paragraphs raised by the RCO in her observations, namely 25, 28, 30, 31,32, 33 in A’s PIF and the relevant narrative portion in XXXXX’s PIF.

The portions of the narratives that detail these events are short and straightforward. Theysimply set out the time, place, the persons present and what happened. In all these events bothA and XXXXXX confirm that the other person was present.



The same Counsel assisted the claimants in the preparation of their PIFs. Interpreters were usedin both instances. Given that this is the case, of course there would be similarities in theirnarratives, these events happened to them both at the same time and the English version wouldreflect that fact.

I would further suggest that had their been differences in the events described, the RefugeeClaims Officer would have used that fact to try and undermine the claimant’s credibility. TheRefugee Claims Officer laments that the narratives lack the “individuality and the spontaneitythat one expects to find in a personalised narrative”.

I must point out that this is not an autobiography or a novel but a description of the events thattook place, in chronological order setting out the relevant facts only. The personalisation andspontaneity occurs at the Hearing of the matter where the Board (and not the RCO) can assesscredibility.

The claimant is clear that there is no collaboration with A “during the Process”, and the RefugeeClaims Officer has no evidence in this regard to rebut this statement, a statement which must beseen as being true given his sworn evidence to that effect.

ConclusionThe Panel has in front of it a young man from Albania. He has stated that he was a member ofLegality Party Youth Forum, an organization presently seen to be in opposition to the AlbanianSocialist government.

As a result of his activities he and his family have targeted by the Socialist authorities inAlbania. The documentary evidence substantially confirms and corroborates that what heexperienced in Albania is plausible in the circumstances.

It is submitted that the claimant has been credible, and that based on the particular facts of thiscase and the present documentary evidence on Albania, there would be more that a merepossibility that he would suffer persecution should he return to Albania. Under thosecircumstances he should therefore be determined to be a Convention Refugee.

I thank the Board for the opportunity in providing these submissions. Should you require anyfurther comments, please do not hesitate to contact me.

Yours truly,

@@@Counsel for the Claimant

(Note: these submissions are based on submissions made by Patrick Roche, Barrister & Solicitor; someinformation identifying the claimant has been changed.)



Appendix F – Sample Application to Re-Open

IRB File Number: TA2-#####


In the Matter of:

Jo Claimant, Client IDJunior Claimant, Client ID

APPLICATION PURSUANT TO RULES 44 AND 55

TAKE NOTICE that an application is made by the refugee claimant, Name,pursuant to Rules 56 and 44 of the Refugee Protection Rules to re-open their claims forrefugee protection, said claim having been declared abandoned on August 16, 2002.

THE GROUNDS FOR THE APPLICATION are that the refugee claimants, nothaving received notice of the hearing, were denied a reasonable chance to be heard pursuant to167(1) and s.168(1) of IRPA and Rules 22 and 58(2) of the Refugee Protection Division Ruleswhich requires that the refugee claimant whose claim is ordered to be abandoned be allowed areasonable opportunity to be heard. Rule 56 mandates that the Board will reopen the claim onproof of a failure to observe a principle of natural justice.

AND FURTHER TAKE NOTICE that in support of the application the refugeeclaimant will rely on the Refugee Protection Determination Division Rules, particularly Rule 55,the affidavit of the applicant, Jo Claimant dated September 9th, 2002, a memorandum of Fact andLaw, and such further and other evidence as counsel may advise and the Board may permit.

THE CONTACT INFORMATION IS AS FOLLOWS:Address of the claimants: ...Phone number of the Claimants: ...

Dated at Toronto, this 10th Day of September, 2002Clinton JuddBarrister & Solicitor### StreetToronto, ON

Phone: ###-####Fax: ###-####



Phone: ###-####Fax: ###-####

Solicitor for the Applicants

TO: IMMIGRATION AND REFUGEE BOARDREFUGEE PROTECTION DIVISION74 Victoria Street Suite 400Toronto, Ontario

And to: Appeals Office, Citizenship and Immigration 416-973-1537



IRB File Numbers: TA1-xxxxx, TA1-xxxxx


In the Matter of:

Jo Claimant, client idJunior Claimant, client id

…

A F F I D A V I T

I, Jo Claimant, presently of the City of Toronto, in the Province of Ontario, make oathand say as follows:

1. I am a refugee claimant from Fredonia. I have made a refugee claim in Canada, and myclaim is joined with that of my son, Junior Claimant.

2. Our PIFs were filed with the Immigration and Refugee Board on April 11, 2001. Theaddress we gave on our PIFs was 1320 Main St., Toronto, Ontario, and the phone number wegave was 416-#####. My son and I continue to live at that address.

3. I am advised by Clinton Judd, Barrister & Solicitor, that on August 30, 2002, he received aNotice of Abandonment Decision on a Claim for Refugee Protection. The notice is datedAugust 28, 2002, and is attached to this affidavit as Exhibit “A”. On receipt of that notice, hecontacted me and set up a meeting with an interpreter today. Today is the first time I have seenthat notice.

4. The Notice of Abandonment Decision says that “By Notice dated June 26, 2002, the RPDrequired you to participate at a conference on July 22, 2002.” I never received such a notice.The Notice of Abandonment Decision says that “By Notice dated July 23, 2002 the RPD advisedyou that a hearing would take place on August 12, 2002, to give you an opportunity to explainwhy the RPD should not declare your claim to be abandoned.” I never received that noticeeither. I am advised by Clinton Judd, Barrister & Solicitor, who is listed as our counsel on thePersonal Information Forms and verily believe that he never received the notices dated June 26,2002 or July 23, 2002 to attend the conference and the hearing; the first time he was aware ofeither of those dates was on August 30th, when he did receive the Notice of AbandonmentDecision.

5. According to the Statement of Service which my lawyer, Clinton Judd, Barrister & Solicitor,obtained from the Immigration and Refugee Board by fax dated September 5, 2002, the Noticeto Appear for the purpose of setting a date for my hearing was sent to my son and me at thefollowing address: 146 Another St, Toronto, Ontario, and to “counsel” at the following address:Big Case, Barrister and Solicitor, 999 Court St, Wrong City, Ontario. I do not know this lawyer



or this law firm and have never given instructions to him to act as my counsel. I am advised byClinton Judd, Barrister & Solicitor, that he never requested this firm to act on my behalf, andthat to the best of his recollection, he is not familiar with this lawyer or this law firm.

6. Neither my son nor I have ever resided at 146 Main St, Toronto, Ontario, nor have we everprovided this address to the Immigration and Refugee Board.

7. According to the Statement of Service which my lawyer, Clinton Judd, Barrister & Solicitor,obtained from the Immigration and Refugee Board by fax dated September 5, 2002, the Noticeto Appear, Abandonment of a Claim for Refugee Status was sent to my son and me at thefollowing address: 146 Main St, Toronto. The Statement of Service for this document indicates“No Counsel.”

8. The Statement of Service and Notice to Appear to set a date and to attend a hearing into myfailure to appear are attached to this affidavit as Exhibit “B.”

9. Although neither notice was sent to Clinton Judd, Barrister & Solicitor, my counsel on thePIF, the “Notice of Abandonment Decision ” was sent to him. Upon receipt of the notice, hecontacted me. I verily believe that had he received either of the previous notices, he would havecontacted me and I would have attended at the IRB as required. Moreover, both my addressand phone number are as on my PIF, and I have not received any of the notices mentionedabove at my address, nor was I contacted by telephone.

10. It has been and remains our intention to pursue our refugee claims. We have neverintended to abandon our claims nor to miss any deadline, hearing or other appointment at theImmigration and Refugee Board.

11. I make this affidavit in support of a motion to reopen the refugee claims of my son and I,conscientiously believing it to be true.

Sworn before me in the city of )Toronto in the Province of )Ontario , this 9th )______ day of September, 2002 ) ______ ____________

Jo Claimant__________________________A Commissioner, etc.



IRB File Number: TA2-xxxxx, TA2-xxxxx


In the Matter of:

Jo Claimant, Client ID ####-####Junior Claimant, Client ID ####-####

APPLICATION PURSUANT TO RULES 44 AND 55

MEMORANDUM OF ARGUMENT AS TO WHY THE BOARD SHOULD ACCEPT THISAPPLICATION

1. The applicants rely on the facts contained in the affidavit of the applicant, Jo Claimant.

2. The applicants were never served with notices to attend either the set date conference orthe abandonment. The statement of service indicates that the Notices to Appear weresent to 146 Another Street., Toronto, which was never their address.Affidavit of Jo Claimant, para. , 3, 4, 5

4. The Refugee Protection Division’s power to declare a claim abandoned is set out in s.168of the Immigration and Refugee Protection Act. The Refugee Protection Division Rules statethat such abandonment, where the Division has the address of the claimants, should take placeonly after a special hearing and only after the claimants have been notified of that specialhearing in writing (except in situations where the claimants are present at a hearing and it isotherwise fair to do so.)

Refugee Protection Division Rules, Rule 58(2)

5. It is submitted that the denial of advance notice of a hearing affecting serious rightsconstitutes a breach of natural justice.

6. It is submitted that under common law, tribunals have jurisdiction to reopen hearings torectify a denial of natural justice, or in circumstances where it recognizes that it has failed toobserve a principle of natural justice.

Kaur v. M.E.I. unreported decision of the Federal Court of Appeal, dated December 4,1989, Court File: A-1161-88

Longia v. Canada (F.C.A.) 10 Imm. L.R.(2d) 3127. It is submitted that under common law a tribunal recognizes that it has failed to observethe principles of natural justice it may treat its decision as a nullity and rehear the case.



Ridge v. Baldwin, [1964] A.C. 40 at 79, Woldu v. M.E.I. 18 N.R. 47 (F.C.A.)

8. It is further submitted that in the context of a refugee hearing, where refoulement couldresult in a threat to the life, liberty or security of the person of the refugee claimant, the denial ofnatural justice becomes a denial of fundamental justice within the meaning of s.7 of theCanadian Charter of Rights and Freedoms.

Singh v. Canada [1985] 1 S.C.R. 177

9. It is submitted that the former discretionary power of tribunals to reopen hearingswhere there has been a breach of natural justice is no longer discretionary for this tribunal. It issubmitted that in recognition of the Charter implications, Rule 55(4) requires the board toreopen the claim where there has been a breach of natural justice: “The Division must allow theapplication if it is established that there was a failure to observe a principle of natural justice.”

10. It is submitted that the applicants have established that there was a breach of naturaljustice in this case.

DECISION THAT THE APPICANTS WANT THE BOARD TO MAKE

10. It is respectfully requested that the Division reopen the claim.

All of which is respectfully submitted this 10th Day of September 2002. Clinton JuddBarrister & Solicitor### StreetCity, ONPhone: ###-####Fax: ###-####

Solicitor for the Applicants



Statement of Service – Example 1


October 16, 2003 Page 82Statement of Service – Example 2


October 16, 2003 Page 83Notice to Appear – Example 1





Notice to Appear – Example 2



Notice of Abandonment Decision –



Example 1