Title: Practice Manual: Representing Claimants Before the Refugee Protection Division Published: July 2003 Author: Legal Aid Ontario

Transcription

1 Practice Manual: Representing Claimants Before the Refugee Protection Division

2 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 Information on page II). Acknowledgments Legal Aid Ontario would like to thank the Department of Justice for funding this project. October 16, 2003 II

3 LAO Contact Information Mailing address: Legal Aid Ontario 375 University Avenue, Suite 206 Toronto ON M5G 2G1 Main Telephone #: or Toll free: Web site: Department Dial direct Other contact info Refugee Law Office LAO LAW (Research Facility) Telephone: or Mentor Hotline (free legal advice or advice on legal strategy for lawyers working on legal aid certificates) Toll free: Telephone: or Toll free: , Ext October 16, 2003 Page i

4 Table of Contents Statutory Mandate...4 Vision...4 About this Practice Manual...4 For more information on Legal Aid Ontario...5 Getting extra copies and updates...5 For more information...5 Resources for Lawyers...6 LAO LAW (Research Facility)...6 E-billing and other electronic forms...6 Mentor Hotline...6 Definitions...7 Refugee Protection...7 Convention refugee...7 Person in need of protection...7 Exclusion -- Refugee Convention...8 First steps...9 The initial interview...9 First steps following the initial interview...9 Counsel of Record and Seeking Disclosure...9 Address Changes...10 The Personal Information Form (PIF)...11 Interviewing the claimant to complete the PIF...11 Questions to ask...12 Membership in a group...12 Involvement with the group...12 How the authorities viewed the group...13 Problems arising from membership in a group by other family members...13 Problems faced by the claimant...13 Problems of similarly-situated persons...13 Detention...13 Details of arrest and detention...13 Release or escape...14 Reporting to police or authorities...14 Torture and other mistreatment...14 State Protection...14 Internal flight alternative...14 Departure from country of persecution...15 Failure to claim elsewhere...15 Re-availment issues...16 Delay in claiming in Canada...16 Recent information from country of persecution...16 October 16, 2003 Page i

5 Finalizing the PIF...16 Filing the PIF...16 Reporting back to the claimant...17 Gathering Evidence to Support the Claim...17 Obtaining medical/psychological assessments...17 Supporting the objective basis of the claim...18 Country conditions research...18 Claimant - specific evidence concerning lack of protection...20 Where to find country documentation...20 Disclosure of documents...21 Refugee Claims Before the Immigration and Refugee Board...21 Nature of the hearing...21 Different Types of Procedures (Triage Process)...22 Expedited interview...23 Preparation...23 The interview...24 If a hearing is scheduled...24 Short hearing...24 Regular hearing...25 Complex cases...26 Procedure at a hearing...26 Preliminary Matters...26 Introduction into evidence of the PIF...26 Introduction of documentary evidence...27 Discussion of the issues...27 Order of Questioning...28 Interpretation...28 Submissions...29 Oral submissions...29 Written submissions...32 The Decision and After the Decision...33 Other Matters...33 Designated representative...33 Witnesses...34 Abandonment of a claim...34 Remedies if case is abandoned...36 Federal Court...37 Withdrawal...38 Reinstatement of claim after withdrawal...39 Appendix A Sample Letters...40 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 October 16, 2003 Page ii

6 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 Appendix B Sample IRB Screening Form...51 Appendix C Affidavit of Identity...52 Appendix D Sample Submissions from a Gender-Based Claim...53 Appendix E Sample Submissions from a Claim Based on Political Opinion...64 Appendix F Sample Application to Re-Open...75 Statement of Service Example Statement of Service Example Notice to Appear Example Notice to Appear Example Notice of Abandonment Decision Example October 16, 2003 Page iii

7 Statutory Mandate The Ontario government introduced legislation in late 1998 that created an independent agency called Legal Aid Ontario (LAO). The purpose of the corporation is to promote access 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 by providing high quality legal aid services; To encourage and facilitate flexibility and innovation in the provision of legal aid services; To recognize the diverse legal needs of low-income individuals and disadvantaged communities; 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 the diverse legal needs of low-income individuals and disadvantaged communities. LAO provides legal aid services by any method it considers appropriate, including certificates, staff offices, duty counsel, community legal clinics, public legal education, summary assistance, alternative dispute resolution and self-help materials. Vision Legal 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 Manual This manual is intended for lawyers and supervised paralegals representing refugee claimants before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). The manual is intended to be a guide to best practices in representing claimants before the Refugee Protection Division of the Immigration and Refugee Board. The focus of the manual is on preparation of the Personal Information Form (PIF) which is crucial to the success of a claim. The PIF will become even more important in the coming months, 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. October 16, 2003 Page 4

8 Counsel should be familiar with: The Immigration and Refugee Protection Act (IRPA) ( 2.5/text.html), The RPD rules ( The commentary to those rules ( This manual is also not a guide to jurisprudence on definitional issues. Links to resources on interpretation of the definitions are given at the end of the following section. For more information on Legal Aid Ontario Legal Aid Services Act ( LASA Regulation 106/99; ( LASA Regulation 107/99; ( Also see: Tariff and Billing Handbook ( Duty Counsel Manual ( Getting extra copies and updates Updates and additional copies of the manual will be provided in electronic format, through the LAO Web site at New updates will be publicized through the legal media and legal aid area offices. For more information For more information about this handbook, please contact: Refugee Law Office Legal Aid Ontario 375 University Avenue, Suite 206 Toronto ON M5G 2G1 Telephone: Fax: October 16, 2003 Page 5

9 Resources for Lawyers LAO LAW (Research Facility) Lawyers acting on legal aid certificates have access to research assistance through LAO LAW. Standard memoranda of law are provided free of charge for specific legal aid cases 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 legal developments of particular interest to lawyers who accept legal aid certificates. The newsletter (LAW@LAO) is available through the Web site. To contact LAO LAW: Telephone: or toll free at Fax: Web site: E-billing and other electronic forms LAO is moving into the electronic age, and will soon conduct many routine business transactions with lawyers and clients through web-based technology. Get started now, by checking 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 electronically through secure Internet technology; Direct deposit save time and money by ensuring you receive your legal aid payments deposited directly to your bank account. Mentor Hotline LAO provides a mentor service offering summary legal advice or advice on legal strategy for less experienced lawyers who represent clients with legal aid certificates. The mentors are volunteer senior lawyers with five or more years of experience in the following areas of law; criminal, family, civil litigation, personal and bodily injury, landlord and tenant, child welfare, medical malpractice, Workers Compensation, consent and capacity and immigration and refugee. The mentor hotline is or lawyers can call the office of the Vice-President, Client Legal Services toll free at extension Mentor lawyers usually return calls within 24 hours. October 16, 2003 Page 6

10 Definitions Refugee Protection Under the Immigration and Refugee Protection Act (IRPA), refugee protection is given to someone who is found to be a Convention Refugee or a person in need of protection. These terms are defined under Sections 96 and 97 of IRPA. Together they are known as the consolidated grounds, although frequently the term is used just to refer to the protection given under s.97. The Immigration and Refugee Board (IRB) has the jurisdiction now not only to determine whether someone is a Convention refugee, but also can make a determination as to whether a person is a person in need of protection. There is a single hearing at which all of these grounds should be considered. IRPA provides the following definitions for Convention Refugee and Person in need of protection: Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, 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 habitual residence 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 their country 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 the meaning 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 or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. A protected person does not include someone who is excluded from the definition. The grounds for exclusion are set out in Articles 1E and 1F of the Refugee Convention. Under IRPA, these grounds for exclusion apply to cases falling under s.97 as well. This is October 16, 2003 Page 7

11 important to note because the Convention against Torture does not contain exclusion clauses. Exclusion -- Refugee Convention 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a 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 competent authorities of the country in which he has taken residence as having the rights and obligations 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 to whom there are serious reasons for considering that: a. he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; b. he has committed a serious non-political crime outside the country of refuge 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 Convention refugee in Canadian law are at the Immigration and Refugee Board Web site: and at the LAO LAW Web site: For the consolidated grounds, the two papers prepared by the Legal Department of the Immigration and Refugee Board in May 2002 is a good place to start: October 16, 2003 Page 8

12 First steps The initial interview At the start of the initial interview, counsel should explain to the claimant the role of counsel. 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 documents he or she has obtained from Canada Immigration Centre (CIC), or from the Immigration and Refugee Board (IRB). This will include the Eligibility document, Removal Order and Notice 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 has received from Canada Immigration (See Appendix A Sample Letters on page 40). This will include forms the claimant has filled out as well as the port-of-entry or inland interview 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 any problem areas can be discussed with the claimant during PIF preparation and any inaccuracies 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 time needs 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 the position that a delay in retaining counsel is not a sufficient reason in itself for granting an extension of time. For this reason, it is essential to mention any disability such as language or lack of education, or any other mitigating factor such as bad advice which may have delayed the claimant from retaining counsel. It is important to show due diligence and an intention to pursue the claim, since if the PIF is not filed on time, the Board may take steps to abandon the claim. A lack of intention to abandon the claim is an important consideration at an abandonment hearing. Furthermore, any difficulties faced by counsel in trying to complete the PIF in time should be detailed. For instance, if there has been a problem getting a competent interpreter despite serious efforts, or if the claim is particularly complicated, or if the claimant has physical or psychological problems which make completing the PIF within the 28 days impossible, these should be mentioned. October 16, 2003 Page 9

13 Address Changes The claimant should be advised about keeping the lawyer s office informed of any address change. The claimant should be advised as well of the importance of notifying both the IRB and CIC if the claimant changes his or her address. Many claimants will not understand that the IRB and CIC are different bodies and that both need to be advised. If counsel undertakes to advise the IRB and /or CIC of any changes of address, counsel should be clear as to the limit of the undertaking. Counsel should be particularly cautious about undertaking to notify CIC of address changes, because the client s relationship with CIC will continue after the refugee claim is complete. If the claim is not successful, CIC will send a notification for the claimant to submit a Pre-Removal Risk Assessment (PRRA) application to the refused claimant at the last address CIC has; a failure to respond to the notification could lead to the person being removed from Canada without a risk assessment. This notification could be sent months or even years after the refugee hearing. October 16, 2003 Page 10

14 The Personal Information Form (PIF) Interviewing the claimant to complete the PIF Note:: The starting point for the description of questions to ask the claimant is from material prepared by Barb Jackman, Barrister & Solicitor, for educational seminars after the introduction of the previous Act. The PIF is the most important form in the refugee process. In preparing the PIF, counsel needs to keep in mind the definitions of Convention refugee and persons in need of protection. Counsel also needs to keep in mind both the inclusionary and exclusionary aspects 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 travel documents, and how the claimant came to Canada. The narrative requires the claimant to set out all of the incidents which caused him or her to seek protection in Canada, as well as any attempts the claimant made to obtain protection from the state. The information in the form is critical. It will affect how the case is screened. (See Different Types of Procedures (Triage Process) on page 22. It will be the first document the decisionmaker will read about the claim. Any discrepancies or omissions can be used to discredit the claimant at the refugee hearing. To minimize such problems, it is important to use a skilled interpreter. While there is an opportunity for amending the PIF before the hearing, those amendments themselves may become the subject of cross-examination. When contacting the claimant to arrange the first interview to prepare the Personal Information Form, or at the first interview, suggest that they use the copy provided by Immigration to fill out as much of the personal information as possible. This is particularly important 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 claimant has not thought about them ahead of time. Reassure the claimant that counsel will be working with him or her to complete the PIF and to leave blank anything the claimant is not 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 helpful if the claimant outlined in chronological order the things that happened that caused him or her 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 the lawyer will be working with the client to ensure that all of the facts are included. If the claimant does not seem comfortable or able to do this, do not insist. October 16, 2003 Page 11

15 There is a danger that a claimant, especially a claimant lacking in education, may feel this assignment is a requirement that has to be done even if the claimant is not capable of doing so. The client might seek out a friend to help him or her, or even a consultant. The draft you 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 fill out the PIF or provide a written narrative in their own language, it will be necessary to start from scratch in a series of interviews. Whether or not the claimant has been able to do a draft, counsel needs to inquire about the claimant s situation. Although the Board now has jurisdiction to grant refugee protection on the basis of the consolidated grounds as well as on the Convention refugee definition, most claims are still related to the definition. Starting from that premise, counsel should first explore the claimant s connection to any of the grounds in the Convention refugee definition. Counsel should ascertain if the claimant has ever been a member of a political party, religious organization or social group. If so, get the name and other details about the party or group. In the case of a political party, ask about 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 will need to indicate when he or she first became involved in the group. That may or may not be the same date as when the person became a member. The claimant should explain his or her 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 it turns out he or she was one of many who gave out pamphlets, the Board might see this as the claimant trying to exaggerate his or her importance. On the other hand, if the claimant actually was an organizer, but is not described as such in the PIF, and the PIF is absent details about the organizing the claimant did, the October 16, 2003 Page 12

16 Board might accuse the claimant of trying to bolster his or her claim when this role is described at the hearing. Where possible, get the exact dates of the demonstrations attended by the claimant. In the case of meetings, at least their frequency, location, and the number of attendees should be noted. How the authorities viewed the group The claimant should be asked how the authorities or other groups viewed the group of which the claimant was a member. It is important to note any problems that the claimant had 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, but because of a family member s involvement in an organization. Inquire as to whether any members of the claimant s family have been so involved. If so, counsel should explore when the family members were involved, the degree of involvement, and whether or not that person or persons had problems relating to their involvement. If there was involvement, find out where the family members are now. If the family members are still in the country, find out if the claimant knows whether they have had any problems since the claimant left. Problems faced by the claimant The narrative should indicate when the claimant s problems began, the nature of the problems, 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 objective basis of the claimant s fears. While the documentary evidence may be a source for this information, the claimant may have knowledge of specific incidents involving friends, neighbours or other members of his or her organization. Again it is necessary to describe when 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 the claimant, the number of persons involved in his or her arrest and detention, whether the persons were uniformed or not, where the claimant was arrested, where he or she was taken to, and how long the detention lasted. October 16, 2003 Page 13

17 A detailed examination of the prison or other place of detention is important. If there was interrogation, details about the interrogation, both about the treatment received and the questions asked, need to be sought. The conditions in the detention facility and the treatment accorded the prisoner are also relevant, especially so where the claim could be based on the ground of cruel and unusual treatment. In cases of arrest, find out if the claimant was charged with any offence, and whether any report was written about the claimant. Release or escape Questions also need to be asked about how the claimant got out of detention. Was he or she released, or was there an escape? If a bribe was paid, or influence used, that needs to be noted. In the case of a release, did that end the claimant s contact with the authorities or did the person have to report to the police or other authorities? Were there any conditions attached to the release? Reporting to police or authorities Even where the claimant was not detained, the claimant should be asked if he or she was ever required to report to the police or other authorities. If so, find out if there were documents 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 may have been psychologically as well as physically scarred. It is important to get a complete description of what occurred. Find out if he or she has scars or other physical injuries. Find out if the claimant received any medical or psychological treatment afterwards. If the claimant 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-state actors or authorities that are not national in scope. The claimant needs to be asked whether he or she took any steps to try to get state protection. If so, what was the result? If not, why not? If the claimant did not seek state protection because he or she had tried in the past and it was ineffective, or if the claimant was aware of other people who had tried unsuccessfully to 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 stay there. If the authorities or anyone else the claimant fears came looking for him, or if the claimant received any threats there, that should be noted. Find out whether the claimant was able to work or study there. If the claimant was in hiding there, or otherwise was unable to live a normal life there, that should be stated. If October 16, 2003 Page 14

18 there are other reasons why the claimant could not go to or remain in another part of his or her country, those reasons need to be set out. These questions are important because, in the end, the claimant is going to have to show that he or she had no internal flight alternative (IFA). If the claim is based on the Convention refugee definition, or on the Convention against Torture, the claimant will need to show there was no place in the claimant s country where he or she would be free from risk, 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 may not be a reasonableness element. In those cases, it is likely that the Board will find an internal flight alternative in a place that is safe for and accessible by the claimant. As of March 2003, there have been no reported decisions, but this is the view taken by the Immigration and Refugee Board s legal department (This view is not binding on the members.): Departure from country of persecution Another area which needs to canvassed is when the person decided to leave his or her country. If there was a passage of time from the last persecutory incident, some explanation as to why there were no further persecutory acts in that time will need to be given. If the claimant changed his or her place of residence that needs to be stated. If such a change provided a temporary solution, it will be necessary to try to explain why this could not be a permanent solution. If during this time, the claimant encountered problems short of persecution these should be canvassed. Some of the questions in the personal data section of the PIF may need to be explained in the narrative. For instance, if the claimant was able to leave his or her country using his on her 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 aspect to their leaving the country, this should be mentioned in the PIF. If the person had to leave on a false passport, or by using someone else s passport, this should also be referred to in the narrative. If the claimant had problems leaving his or her country, this should be mentioned in the PIF. Failure to claim elsewhere If the claimant passed through other countries on his or her way to Canada, the claimant should explain in the narrative why he or she did not make a refugee claim in those countries. October 16, 2003 Page 15

19 Re-availment issues If the claimant previously travelled outside of his or her country, and then returned to that country, an explanation should be given, particularly if the claimant had faced incidents of persecution 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 her country. The claimant may have received information that people are still looking for him or her. Also, the claimant may have some information about what has happened to family members or persons similarly situated to the claimant. Any such information should be included in the PIF. Finalizing the PIF Once the draft of the PIF has been completed, it is best to finalize it on another day. This will 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 explored further. In finalizing the PIF, counsel should be especially alert to any discrepancies in dates between the narrative and the personal data section. For example, the narrative might indicate 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 that not 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 former situation, then it would be advisable to explain the claimant s thinking in the narrative. Filing the PIF Once the client and the lawyer have met and the PIF has been translated back to the client through an interpreter, the claimant has to sign in the spaces provided. Five copies of the PIF are then made. It is important that the PIFs be delivered to the Immigration and Refugee Board in a manner which ensures that counsel and the claimant will have proof of service. 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. The receptionist at the IRB will date-stamp the copies and give two copies back to the courier to bring back to the office. One should go into the file, and the other should be given to the client. This may be done by mail, or by asking the client to come and pick it up. October 16, 2003 Page 16

20 Reporting back to the claimant When returning the PIF to the claimant, a letter should be given to the client advising that he 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 Clair Avenue East, or from the following page of the Government of Canada Web site ( 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 personal identity documents, as well as other documents which would be helpful in establishing the claim. In some cases, it is a good idea to provide the claimant with a list of the type of documents that the claimant should try to get. For instance, where a claim is based on party 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 claimant should notify counsel as soon as any documents are received. In addition, counsel should once more emphasize the importance of the PIF. If the claimant discovers any mistakes after the PIF has been filed, or the claimant has received new information, 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 or psychological report will assist the case. Refer the claimant to a doctor who has experience dealing with refugee claimants or people who have experienced torture. Physical assessments can corroborate injuries the claimant has suffered or medical procedures that the claimant has undergone. Psychiatric expertise can be helpful in identifying Post Traumatic Stress Disorder and other symptoms claimants suffer from as a direct result of what they experienced in their country before they fled. The names of experienced doctors and psychiatrists can be obtained from the Canadian Centre for Victims of Torture (CCVT) at (416) The initial contact with the doctor to request a physical or a psychological assessment can 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 number must be included in the letter. This means that the doctor will charge a fixed rate for the medical report. October 16, 2003 Page 17

21 If there is a deadline for the report to be submitted, (i.e. the 20-day disclosure deadline or hearing date), this should also be brought to the attention of the doctor immediately both 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 of attending, as well as the time and date of the assessment. Tell the claimant that the doctor 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 for review. When booking the appointment, find out how long it will take to obtain the report. Review the report to ensure accuracy with respect to the PIF narrative and other personal information. If upon review, counsel feels that there are mistakes, or that some matters have been overlooked, contact the doctor immediately. Once the completed report has been received, counsel should notify the claimant where a doctor has recommended follow-up treatment or therapy. If treatment has not been pursued, 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 to credibility concerns at the hearing, counsel should review and discuss the report with the claimant. The report has to be filed with the Board at least 20 days before the hearing date. If the hearing has not been scheduled and the claimant is anxious to have it proceed, a request can 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 the claim Country conditions research Note: This section is based on Country Conditions Research and Documentation for Refugee Claims. 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? October 16, 2003 Page 18

22 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 the objective basis for the claim. In order to show there is an objective basis to the claim it is necessary to provide evidence of the country conditions in the country or countries where the claimant fears persecution. Evidence of country conditions can be introduced in three ways: 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 of affidavit or report); Oral evidence. This can be by the claimant and also by other witnesses who have knowledge 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 Refugee Protection Division Rules. Rule 38 requires that notice be given to the Board and to any other parties of the witness contact information, the purpose and substance of the witness s testimony, the time needed for the witness s testimony, and whether counsel wishes the witness to testify by videoconference or telephone. In the case of expert witnesses, the rule is more onerous; counsel must provide a signed summary of the witness s evidence, as well as a description of the witness s qualifications. The type of documentary evidence that is necessary depends on who the agent of persecution 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 adequate prosecution of human rights violators. (In a federal state or in any situation where the claimant fears local authorities, it may be necessary to research the reach of the authority s power.) Sometimes, the agents of persecution, while not governmental agents themselves, are linked to governmental authorities. Examples include paramilitary groups, death squads, some religious 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 its members for human rights violations. October 16, 2003 Page 19

23 For cases involving the Refugee Convention or risk to life or of cruel and unusual treatment, 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 the authorities. (Although a connection to the state is not necessary, it may be relevant in showing that the state may not provide protection); Document any impunity the specific group has and/or the lack of adequate prosecution of human rights violators generally. Claimant - specific evidence concerning lack of protection Desirable documentation would include evidence showing the inability or unwillingness to provide protection to the claimant or to persons who are similarly situated. With respect to the claimant himself or herself, copies of reports taken by the police or declarations or denunciations made by the claimant are particularly useful. In terms of similarly situated persons, human rights reports or affidavits by such individuals are examples of probative documentary evidence. Where to find country documentation A starting point, and a starting point only, is the RPD Information Package an index of which the Board provides to counsel or the claimant in advance of the hearing. Counsel can borrow 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 downloading from the Internet will not provide the pagination system the Board uses. This could create difficulties 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 at the hearing. The RPD Information Package normally consists of some human rights reports such as the Amnesty International annual report, the U.S. Department of State Country Report on Human Rights Practices, as well as Response to Information Requests. The latter are responses to requests for information by Members or RPOs in previous cases. They are available on the IRB s Web site: It is, of course, not necessary to duplicate information in the RPD Information Package. On the other hand, it is wise to be wary about the packages. Although less politicized than at the height of the Cold War, the DOS Reports may sometimes be overly optimistic about human rights improvements by American allies; the U.K. Home Office reports sometimes make sweeping judgments about whole classes of refugees. Both reports, as well as the Response to Information Requests are held in high esteem by most Board members. To October 16, 2003 Page 20

24 counter assertions in those documents, it is necessary to find and submit quality documentary evidence. In some cases, it may be necessary to look for expert witnesses to counter information in these documents. The RPD Information Packages can become stale well before they are revised, which is usually once a year. Counsel should ensure that more recent documentation is submitted as evidence. There is an abundance of human rights materials on the Internet. Links to human rights reports and other sources of information can be found at: Refugee Lawyers Association: The resources tab of the site; Country packages prepared by the Refugee Law Office are available from LAO Law: Disclosure of documents Rule 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 the Minister or from the Refugee Protection Division itself; such documents may be introduced 5 days before the hearing. In order to get an exception from these time limits, counsel should be aware of Rule 30, and will 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 ( indicates that the RPD can consider the personal circumstances of the claimant, as well as when the documents were sent in. The Commentary also sets out the form in which documents need to be. They must be on single-sided letter-sized paper and, if more than one document, need to be page-numbered and have a table of contents. Refugee Claims Before the Immigration and Refugee Board Nature of the hearing Note: In April 2003, the RPD is announcing dramatic changes to the nature of the hearing. October 16, 2003 Page 21

25 Hearings before the RPD are generally before a single member of the Board. In some cases there will be 3 member panels. According to the Board s policy Designation of Three- Member Panels, ( there are three 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 procedural questions. This would include situations where the Board wanted to create cases with precedential value. 3. The third is to facilitate the exchange of ideas between regions. This happens where the 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 be non-adversarial. However, the reality is often quite different. The Refugee Protection Officer often vigorously cross-examines the claimant, and members also question the claimant. The limits to which a member can go in the manner and content of his or her questioning are still not defined by the Federal Court. A recent decision however, found there was not a reasonable apprehension of bias even where the Member s energetic and extensive questioning was at times insensitive and not relevant. (Tchiegang v. Canada (M.C.I.) 2003 FCT 245); ( Nevertheless, if counsel concludes that the member has descended in the arena and no longer appears impartial, counsel needs to raise the question of reasonable apprehension of bias at the hearing. This is not to say that all, or even most hearings are adversarial. Much will depend on the particular personalities at play, but counsel has to be prepared to vigorously protect his or her client. Counsel must object to irrelevant or misleading questions, whether by the RPO or by the member. Counsel needs to have a grasp of all of the documentary evidence before the tribunal, and be attentive to situations where often inadvertently the member or the RPO does not fairly put excerpts from that evidence to the claimant. Sometimes the member or the RPO will ask the claimant to comment on a particular statement in that evidence. Where there is evidence that says something different, counsel should request that that evidence also be put to the claimant, or counsel should be prepared to raise it in re-examination. Different Types of Procedures (Triage Process) The IRB determines refugee claims using different methods, depending on a number of factors. These include: the country conditions from which the claimant has fled; the acceptance rates for the claimant s country; personal claimant documentation; as well as the specifics of the claim set out in the PIF. Based on these factors, the case will be dealt with in one of four ways by the Board as set out in its Triage Process : October 16, 2003 Page 22

26 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 that may involve many sittings. Expedited interview An expedited interview is a procedure by which a person can be determined to be a Convention refugee without having to go through a hearing. An expedited interview is not a hearing. The interview is conducted by an RPO and there is no member present. If the claimant is not successful in the expedited process, the claimant remains entitled to have his or her claim determined at a hearing. It is not always possible to predict which cases will be scheduled for an expedited interview. One of the most relevant factors is whether there is a high acceptance rate for the claimant s country. In the Board s own policy document, ( it states that claims which appear to be manifestly well-founded will be expedited. Another factor is whether the claimant is able to provide personal documentation to support the claim, and whether it appears to fit the Convention definition or meet the Consolidated Grounds criteria. This is in addition to the existence of strong country documentation that corroborates the objective basis for the claimant s fear. The Board policy refers to another criteria for expedited claims -- the absence of any apparent inconsistencies or anything that appears implausible which would make a hearing necessary. Complex legal or factual issues, as well as intervention by the Minister s representative 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 in the 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 whether there is any additional information that needs to be brought to the interview. It is not necessary to provide country documentation at expedited interviews, but if there is any information 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 condition documents would be advisable, where, for example, change in country conditions may come up as an issue. Counsel should prepare the claimant for what to expect during the interview and advise the claimant of the possible outcomes. October 16, 2003 Page 23