To examine core evidence in a case, piecemeal, each part out of context, not as part of an entirety, is as if a decision-maker examined a forest by looking at each tree and omitted to see the forest as a whole, thus missing the big picture. Where uncontradicted evidence, declared credible, is shredded, piecemeal, said evidence lacks understanding.
It is no different than dissecting a narrative, considered credible, to such a degree that it loses its overall cohesiveness and no part separately then resembles its origin as part of the whole. All of which leads to unreasonable conclusions.
So begins Justice Shore’s analysis in Warnakulasooriy v. Canada (Citizenship and Immigration), 2011 FC 830.
The case involved a refugee claimant from Sri Lanka. The Refugee Protection Division found the claimant to be credible. Specifically, the tribunal accepted that:
- In 1992 the claimant was attacked with a sword, causing damage to four of his fingers;
- In 1994, the Sri Lankan Freedom Party United Front’s supporters filed 11 false claims against the applicant;
- In 1997, the claimant was again arrested on false allegations;
- In 2003, the claimant was arrested and detained for 100 days, and only released on the condition that he report once a month. He was eventually acquitted;
- In 2008, the claimant began receiving anonymous threats; and
- In 2009, the claimant was told that if he worked on election day, he would be killed. Two shots were fired at him.
In determining that the claimant did not face persecution, Justice Shore found that the tribunal analyzed each incident piecemeal, instead of considering the cumulative effect of the alleged persecution as a whole.
The Court also found that the Tribunal erred when it found that the claimant would be able to obtain adequate state protection against the threats while at the same time noting that the degree of protection afforded was at the “whim of the government”.Read more ›
The five grounds for claiming Convention refugee status on the basis of a well-founded fear of persecution are race, religion, nationality, membership in a particular social group and political opinion.
Political opinion is a broad concept that is not merely limited to belonging to a political party. Canada (Attorney General) v Ward (1993) is the leading Supreme Court of Canada case on the scope of political opinion. According to that decision, political opinion includes “any opinion on any matter in which the machinery of state, government, and policy may be engaged.” The Court stated:
Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground “that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party”; see … [Atle Grahl-Madsen, The Status of Refugees in International Law (1966)] at p. 220. The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen’s definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant. In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real. The more general interpretation of political opinion suggested by Goodwin-Gill, [Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983] at p. 31, i.e.,Read more ›
There are three types of refugee classes for refugees that are re-settled from abroad. These are the Convention Refugees Abroad Class, the Country of Asylum Class, and the Source Country Class. Minister Kenney has introduced regulatory changes to eliminate the Source Country Class.Read more ›
An area of refugee law that often frustrates refugee claimants is the requirement that they show that there was no reasonable internal flight alternative to claiming refugee status in Canada.Read more ›
Refugee practitioners colloquially refer to their clients as being either s. 96 or s. 97 Immigration and Refugee Protection Act (“IRPA”) refugees. Section 96 of IRPA provides that a person who is recognized by the Geneva Convention as being a convention refugee shall be conferred refugee protection. Section 97, meanwhile, provides that a person who is in need of protection shall also be afforded refugee protection in Canada.Read more ›
People appearing before the Immigration and Refugee Board come from all over the world, and often communicate in a language that their counsel, the hearings officers, and members do not understand. Accordingly, translators and interpreters are often used during IRB proceedings.
Translators and interpreters have a very serious and important role in proceedings.
Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. (Umubyeyi v. Canada). Accordingly, the IRB and the courts take the right to proper interpretation seriously.
A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous (Mohammadian). An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation.
In Xu v. Canada, the Federal Court noted:
As important as this right is, the burden on a person raising interpretation issues is significant. Such a claim must overcome the presumption that a translator, who has taken an oath to provide faithful translation, has acted in a manner contrary to the oath. Simply alleging mistranslation will not be sufficient – the burden is to show that on a balance of probabilities mistranslation occurred.
I speak Mandarin, Chinese. I remember observing a spousal-sponsorship appeal before the Immigration Appeal Division. The spouse’s lawyer, the hearings officer, and the member did not speak Mandarin. The only individuals in the room that understood Mandarin were myself,Read more ›
One issue that refugee claimants often face is demonstrating why they did not claim refugee status in a country that they travelled through on route to Canada. For example, if an individual travels from Somalia to New York, and then from New York to Toronto, the claimant might be asked why he did not seek asylum in the United States.
While a certain inference can be made from not claiming refugee in a transit country, this cannot be the sole factor on which the Refugee Protection Division makes its decision. The RPD must assess why there was a delay in the application, and why asylum was not considered at the first occasion.
Examples of arguments that have been used include:
- Where a claimant’s brother or sister had successfully obtained refugee status in Canada on similar facts. (See Angel Gonzales v. Canada, 2010 FC 1292.
There are few things more devastating for a refugee claimant than when the Refugee Protection Division rejects your claim. At that point, you essentially have two main options: make a pre-removal risk assessment application or seek judicial review.
The objective of a judicial review is to convince a judge that the Refugee Protection Division’s rejection of your claim was either unreasonable or incorrect in law. Applicants cannot introduce new evidence, and are limited to the evidence that was before the Refugee Protection Division Member that heard your case.
In this post, I outline some possible grounds that you may use to successfully obtain a judicial review. While I strongly recommend that you hire a lawyer to conduct your judicial review, I hope that this post will provide you with some initial ideas to discuss with your counsel.
Did the RPD misapply credibility during the section 97 analysis?
Under section 96 of IRPA, a claimant must establish the existence of a well-founded fear of persecution tied to a 1951 Convention ground. However, under section 97 of IRPA, a claimant must show on a balance of probabilities that removal from Canada would subject them personally to specified dangers and risks.
The evidence necessary to establish a refugee claim under section 96 of the Act is different from that required to establish a claim under section 97 of the Act. Section 97 requires that the Board consider the generally known country conditions of the claimant’s country of origin. The Board is required to analyze how these conditions might establish a section 97 claim. It is a wholly objective analysis, and must be evaluated in light of all relevant considerations and with a view to the country’s human rights record.
A negative credibility determination in respect of a refugee claim under section 96 is not necessarily dispositive of the consideration under section 97.Read more ›
The Immigration and Refugee’s Board (“IRB“) National Documentation Package (“NDP“) is the starting point for compiling information for a refugee case. The NDP contains information on almost every country on earth. Each package contains a selection of documents on human rights, security conditions, and other issues that are relevant to the determination of refugee protection claims. They are regularly reviewed and updated.
Each NDP is broken down into the following sections:
- General Information and Maps
- Human Rights
- Identification Documents and Citizenship
- Political Activists and Organizations
- Gender, Domestic Violence, and Children
- Sexual Orientation
- Criminality and Corruption
- Military Service Issues
- Judiciary, Legal, and Penal Systems
- Police and Security Forces
- Media Freedoms
- Nationality, Ethnicity, and Race
- Exit/Entry and Freedom of Movement
- Labour, Employment, and Unions
It is important that anyone with a case before the Refugee Protection Division familiarize themselves with the NDP for their country of origin.
Refugee Protection Division members do not have a duty to make themselves aware of information before it becomes vetted and becomes part of a country’s National Documentation Package. An exception is if an applicant directs the Member’s attention to the information in question prior to a decision being made. (Ramos v. Canada, 2011 FC 15)Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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