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 ›
Many refugee claimants are not based on situations where the state is the agent of persecution. Rather, the source of risk is a quasi-governmental authority or private actors. In such cases, the issue turns to one of the adequacy of state protection.
Ward v. Canada
The leading decision on the issue of state protection in the context of refugee and pre-removal risk assessment decisions is the Supreme Court of Canada decision Canada (Attorney General) v. Ward,  2 S.C.R. 689. There, the Supreme Court of Canada held that a state’s inability to protect its citizens is the crucial element in determining whether a claimant’s fear of persecution is well-founded as it determines the reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.
Specifically, the Supreme Court noted that:
Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection
The Court went on to note that:
Only situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities;Read more ›
A persuasive decision is a decision that is considered to have persuasive value in developing consistent jurisprudence. They provide clear, complete, and concise reasons with respect to the particular element that is thought to have persuasive value, and consider all of the relevant issues in a case. Other members are encouraged to rely upon persuasive decisions in the interests of consistency.Read more ›
On July 14, 2009, Canada imposed a visa requirement on the Czech Republic. At the time, Jason Kenney, the Minister of Citizenship and Immigration, took to the air waves defending the decision, repeatedly stating that a high percentage of the Czech refugee claims were bogus.Read more ›
People are often dismissive when they hear of refugee claimants arriving with stories of persecution at the hands of militias or gangs. This especially appears to be the case when the refugee claimants originate from a democratic country. Why, they ask, do these people not simply go to the police in their respective home countries?Read more ›
In an immigration case which focuses on gender, the reasons of the Refugee Protection Division must reflect the specific situation of an applicant, with particular attention to Guideline 4.Read more ›
As the legal community continues to debate whether Bill C-49 is constitutional, the Supreme Court of Canada has indirectly touched upon the issue in Németh v. Canada, a decision about whether a refugee can be extradited to his/her country of origin to face charges. The answer is yes.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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