SPECIAL SERIES: Immigration Hearings and Appeals

by Rekha McNutt

I’m really excited to announce that I’ll be doing a podcast series with my good friend Mark Holthe, an immigration lawyer based in Lethbridge, Alberta, all about the Immigration and Refugee Board of Canada! We’re going to cover all things hearings and appeals. Here’s the introductory episode where we lay out our plan for the series. The first episode on the IAD should be out very soon! So stay tuned!

https://www.canadianimmigrationpodcast.com/special-series-immigration-hearings-and-appeals/

If there are other topics you would like to see posts or podcasts on, please email me!

Asylum Seekers Tool Kit

The Canadian Bar Association, Immigration Law Section, has put together a resource for navigating the Canadian refugee system. The Toolkit provides brief, high-level guidance on Canadian refugee law and procedure, and other options for legally entering the country. The Toolkit breaks down the exceptions to the Safe Third-Country Agreement, talks about inland protection claims, and explains the refugee determination process. 

You can access the Toolkit here. 

The Refugee process is a very complex and legally challenging. It is important to understand whether your situation makes you a "refugee". Seek legal assistance early before embarking on this path. As always, we are happy to provide that assistance. Contact one of our lawyers for a consultation appointment if you are thinking about seeking asylum. 

Refugee (Asylum) Claims - Understanding the Process

There has been a lot of news coverage about the influx of refugees (asylum seekers) into Canada via the United States, particularly into Quebec. This post is meant to explore who is entitled to make such a claim in Canada and what claimants can expect.

Eligibility to make the claim

Canada and the US have entered into what's called a "safe third country agreement". Essentially, both countries consider the other to be relatively equal in terms of refugee protection and the refugee process. As such, there is an expectation for claimants to make their refugee claim in the first of these two countries. 

The practical consequence of this agreement is that it prevents individuals crossing from the US into Canada at a land border from making a claim in Canada. 

There are exceptions to this agreement:

• If the claimant has family in Canada
• If the claim is made at an in-land office
• If the claim is made at an airport

There are other eligibility factors as well, but this is the main issue affecting those entering Canada at a land border from the US. The eligibility determination is the first step in determining whether someone will be allowed to make a claim in Canada.

Eligible Claimants

Once a claimant is deemed eligible to make a refugee claim, they are provided a hearing date within 45-60 days depending on where their claim was made. 

Claimants are instructed to complete medical exams, and once that is in the system, they are eligible for open work permits. 

A successful claim

It is imperative that a thorough legal opinion be sought before a claim is made to determine the likelihood of success. A "refugee" or "protected person" is a very specific defined term. Not everyone escaping horrible conditions in their country of origin will meet these definitions. A refugee-type risk is a personal risk to the individual, and one that is not generally faced by the general population. There are a number of grounds of persecution that must be proved to meet this definition. 

A refugee claim is extremely technical and involves complicated legal principles. Corroborating evidence in support of a claim is also crucial. A failure to grasp those issues from the outset can result in disastrous consequences. These are matters that must be thought of and planned as far in advance as possible in light of how quickly hearings are held. 

Claimants really only have one opportunity to prove their case.

Your claim might not meet the legal definitions of Refugees. But maybe you have a humanitarian claim which is a better option. Proper legal counsel is required to assess what is best. 

The Hearing 

A refugee hearing is presided by a Member of the Refugee Protection Division (RPD) who questions the claimant and reviews the documentary evidence. The Member will then render a decision on whether the claimant meets the definition of a Convention Refugee or Protected Person. 

Post-hearing

If the outcome of the hearing is positive, then the claimant can apply for permanent residence. 

If the outcome is negative, an appeal right to the Refugee Appeal Division may exist. Alternatively, a Judicial Review application to the Federal Court might be the only option. 

If no appeals are available (or are unlikely to succeed), then Claimants need to be aware of imminent deportation. Those who entered via the US (having met an exception to the safe third country rule) can be returned to the US. The other option is to remove failed claimants to their country of origin.

This deportation process can happen extremely quickly after a negative decision. The risk of deportation exists for the first 12 months following a negative refugee claim or appeal. 

There is also a 12-month bar to filing a humanitarian & compassionate application (unless there are children or serious medical issues involved). 

These post-hearing risks are something that you must be aware of and forms part of an assessment we do as lawyers to properly advise our clients as to the best course of action. Again, this is what makes an initial consultation vital to the refugee process.

Refugees - Montreal - Dedicated Service Counter

In light of the influx of asylum seekers entering Canada (specifically into Quebec), IRCC has set up a "Dedicated Service Counter" in Montreal, open to the public from 8am to 4pm. This is meant to speed us eligibility interviews of newly arrived asylum seekers, which then allows claimants to apply for work permits while they await the adjudication of their asylum claim.

Details from the notice:

The dedicated service counter will allow claimants to get an earlier date for an eligibility interview which will also help them to have earlier access to work permits.  For this to happen, it is essential that each client completes the required application forms in full. Those requiring assistance with their application forms can get it at the dedicated service counter.

Help us Spread the Word

This counter is open to the public without appointment 7 days a week from 8am to 4pm and is located at:

Guy Favreau Complex, 200 René Lévesque Blvd West, suite 10, Montréal

We have prepared a handout in English, French and Creole with advice for asylum seekers on completing their forms. We have included it for your reference.

Credibility vs. Plausibility in Refugee Claims

I recently appeared before the Federal Court on a judicial review of a negative Refugee Appeal Division (RAD) decision. The claimant was a Cuban national accused of flouting Cuba's currency controls. 

The Applicant was self-represented at his refugee hearing before the Refugee Protection Division (RPD). As such, the corroborative evidence was far from idea. However, the RPD did find him to be detailed and consistent in his evidence. The RPD rejected the claimant's documents alleging they could not be independently verified to be authentic. However, the RPD made no actual efforts to verify the documents. The RPD also made a host of negative plausibility findings, which it said disposed of the claim in light of the lack of verifiable corroborative documents.

The claimant exercised his appeal rights to the RAD, which agreed that the RPD had no basis to find the claimant's documents to be fraudulent. However, the RAD simply dismissed the claimant's corroborative documents as "not helpful", without elaborating on why it was so. The RAD then adopted and affirmed the RPD's negative plausibility findings and rejected the appeal.

We then sought judicial review at the Federal Court. The crux of the argument was the difference between credibility findings and plausibility findings. The Courts have consistently held that plausibility findings must only be made in the clearest of cases. Justice Fothergill allowed the Judicial Review, finding that the RAD's negative plausibility findings were not reasonable, and had no basis in the evidence. 

The important take away from this one is to ask whether negative plausibility findings were reasonably made by a decision-maker. Simply because certain events may seem implausible in the Canadian context (or Western culture), does not render them impossible in countries like Cuba. 

The matter will now be returned to the RAD for a new decision to be made by a different Member. Now comes the task of putting forth any further evidence on the claimant's behalf and addressing the issues raised at first instance by the RPD and RAD.

Fulltext of the decision available here. 

Expedited Refugee Claims

The Refugee Protection Division (RPD), which adjudicates refugee claims made in Canada, is permitted to designate certain countries for expedited processing. 

On December 1, 2016, the Acting Deputy Chairperson of the RPD designated Eritrea for expedited processing "to enable the RPD to meet its mandate of making refugee status determinations fairly and efficiently by accepting claims without a hearing in appropriate circumstances."

Syria and Iraq were previously designated for expedited processing.

Pre-Removal Risk Assessments (PRRA)

By Rekha McNutt

As the new year begins, the Canada Border Services Agency (CBSA) in Calgary (and we hear elsewhere) has been very busy in issuing PRRA notices. This is a crucial step in the removals process and it is therefore very important to understand your rights and responsibilities in this regard.

A PRRA is the final risk assessment given to an individual before they are deported back to their country. Not everyone is eligible for a PRRA, but if you are, pay close attention to the deadlines provided. If you are eligible for a PRRA, your removal from Canada is "Stayed" (ie. paused) until such time as a negative decision is made on your PRRA.

We are told that approximately 500 PRRA call-in notices have been issued in Calgary alone! A call-in notice simply requires you to attend at a CBSA office to be given a piece of paper which allows you to file your PRRA application. The process is straightforward. Thereafter, you have 15 days to file your PRRA forms.  If you fail to file your forms in time, you no longer benefit from a Stay of your deportation, and can be removed at any time. 

Once forms are sent in, you will have another 15 days to send any submissions on the risks you face in your country. Those submissions can be updated during the PRRA process. 

Ultimately, to succeed on a PRRA, you must demonstrate you face refugee-like risk. As such, general adverse country conditions will not be enough. However, even if you do not believe you will succeed on the PRRA, filing it may still be important, especially if you happen to have other applications (such as a humanitarian and compassionate application) currently in queue for processing. 

So, if you have been served with PRRA, or have an appointment coming up, don't panic! But do get good legal advice on your rights and responsibilities in Canada.

H&C Applications and the SCC in Kanthasamy

By Rekha McNutt

In December 2015, the Supreme Court of Canada ("SCC") released a very important decision on how Immigration Officers are supposed to evaluate cases in humanitarian and compassionate (H&C) applications. H&C applications are usually filed by individuals in Canada who do not have any other way of immigrating or remaining in Canada, and often face tremendous hardships of having to return to their home country. An H&C application is the last hope for many individuals and families. 

In recent years, Officers have been routinely refusing applications when applicants face hardships in their country that is universally felt by everyone living in that country. As a result, even if the conditions in a particular country are deplorable, the applicants were being refused because the hardship felt too broadly by others living there.

Officers also limited their analysis to hardship that met the threshold of "unusual and undeserved" or "disproportionate". These terms are not found anywhere in the Immigration and Refugee Protection Act ("IRPA") or Regulations.  

This is why the SCC's decision in Kanthasamy is so important. Canada's highest court has provided very clear jurisprudence on how Immigration Officers are to evaluate H&C applications. Here are some excerpts from the decision that are particularly helpful.

The Court held that it was inappropriate to rely on the words “unusual and undeserved or disproportionate” as creating distinct thresholds for relief:

[33]      The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1).  As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.

The SCC held that a segmented approach to assessing humanitarian applications was inappropriate. The Court also held that the terms “unusual and undeserved or disproportionate” appeared nowhere in the legislation, and that it was inappropriate to strictly rely on those terms to discount the overall hardship to an applicant:

[45]      Applying that standard, in my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’s circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”, then appeared to discount each from her final conclusion because it failed to satisfy that threshold.  Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion and rendering her decision unreasonable.

The SCC held that it was an error to dismiss evidence of hardship simply because there is no evidence that an applicant is being personally targeted:

[53]      This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633 (CanLII).

[54]      Here, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, 2013 SCC 5 (CanLII), [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38. [emphasis added]

Finally, the SCC held that applicants need only show that they would likely be affected by adverse country conditions:

[56]      As these passages suggest, applicants need only show that they would likely be affected by adverse conditions such as discrimination. Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant under s. 25(1), whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from those experiences.  Rennie J. persuasively explained the reasons for permitting reasonable inferences in such circumstances in Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714 (CanLII):

While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return . . . . This is not speculation, rather it is a reasoned inference, of a non-speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis . . . . [para. 12 (CanLII)]

The Court also provided guidance on how the best interests of children (an important factor to be given significant weight in an H&C application) is to be treated:

[35]      The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 20.  It must therefore be applied in a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 (CanLII), [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application in the context of a particular case.

[36]      Protecting children through the “best interests of the child” principle is widely understood and accepted in Canada’s legal system: A.B. v. Bragg Communications Inc., 2012 SCC 46 (CanLII), [2012] 2 S.C.R. 567, at para. 17.  It means “[d]eciding what . . .  appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention”: MacGyver v. Richards (1995), 1995 CanLII 8886 (ON CA), 22 O.R. (3d) 481 (C.A.), at p. 489.

[37]      International human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71.  Article 3(1) of the Convention in particular confirms the primacy of the best interests principle:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

[38]      Even before it was expressly included in s. 25(1), this Court in Baker identified the “best interests” principle as an “important” part of the evaluation of humanitarian and compassionate grounds.  As this Court said in Baker:

. . . attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for [a humanitarian and compassionate] decision to be made in a reasonable manner. . . .

. . . for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them.  That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying [a humanitarian and compassionate] claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [paras. 74-75]

[41]      It is difficult to see how a child can be more “directly affected” than where he or she is the applicant.  In my view, the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any hardship”, the concept of “unusual or undeserved hardship” is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v. Canada (Citizenship and Immigration), 2010 FC 149 (CanLII), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009.

It remains to be seen how CIC (or now IRCC) will interpret this jurisprudence in assessing H&C applications. I suspect refusals will continue and that we will see further guidance from the Federal Court on judicial review. 

1F(b) - Exclusion from Refugee Protection

By: Rekha McNutt

The Supreme Court of Canada (SCC) recently released a decision on the interpretation of Article 1F(b) of the Convention Relating to the Status of Refugees ("Refugee Convention"). The case is Febles v. Canada (Citizenship and Immigration), 2014 SCC 68.

Facts:

This case involved a refugee claimant from Cuba. He had previously been granted refugee status in the United States. While living in the US, the Applicant was convicted and served time in jail for two assaults with a deadly weapon. The US therefore revoked his refugee status and issued a removal warrant.

The Applicant then came to Canada, and made a refugee claim.

Issue:

The only issue in this case was whether Article 1F(b) of the Refugee Convention (adopted into our immigration law under s.98 of the Immigration and Refugee Protection Act - "IRPA") barred the Applicant from refugee protection because of his past crimes.

Decision:

Article 1F(b) of the Refugee Convention reads:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

In the past, courts had at times interpreted this section to be limited in application to those who were fugitives from justice, and not those who had served their sentence. The Applicant in this case attempted to argue that, because he had in fact completed his sentence (and therefore not a fugitive), he should not be excluded from protection under Article 1F(b).

The SCC disagreed. Relevant portions of the Court's decision, as written by McLaughlin C.J. are reproduced here (highlighting mine):

[14]                          Despite its facial clarity, the meaning of the phrase “has committed a serious non-political crime” is the subject of debate by courts and academic writers.  While there are many variations of these debates, the main issue in the present case is whether “has committed a serious . . . crime” is confined to matters relating to the crime committed, or should be read as also referring to matters or events after the commission of the crime, such as whether the claimant is a fugitive from justice or is unmeritorious or dangerous at the time of the application for refugee protection.  If Article 1F(b) is read as including consideration of matters occurring after the commission of the crime, people who have committed a serious crime in the past may nevertheless qualify as refugees because they have served their sentence or because of redeeming conduct subsequent to the crime.

[15]                      ... lead me to conclude that the phrase “has committed a serious . . . crime” refers to the crime at the time it was committed.  Article 1F(b), in excluding from refugee protection people who have committed serious crimes in the past, does not exempt from this exclusion persons who are not fugitives from justice, or because of their rehabilitation, expiation or non-dangerousness at the time they claim refugee protection. 

... 

[22]                          I agree.  I cannot accept Mr. Febles’ argument that Articles 1F(a) and 1F(c) support the view that the exclusion from refugee protection under Article 1F(b) is confined to fugitives.  There is nothing in the wording of these provisions or in the jurisprudence to support this contention...

... 

[35]                          I cannot accept the arguments of Mr. Febles and the UNHCR on the purposes of Article 1F(b).  I conclude that Article 1F(b) serves one main purpose — to exclude persons who have committed a serious crime.  This exclusion is central to the balance the Refugee Convention strikes between helping victims of oppression by allowing them to start new lives in other countries and protecting the interests of receiving countries.  Article 1F(b) is not directed solely at fugitives and neither is it directed solely at some subset of serious criminals who are undeserving at the time of the refugee application.  Rather, in excluding all claimants who have committed serious non‑political crimes, Article 1F(b) expresses the contracting states’ agreement that such persons by definition would be undeserving of refugee protection by reason of their serious criminality.

... 

(6)         Conclusion on the Scope of Article 1F(b)

[60]                          Article 1F(b) excludes anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.  Its application is not limited to fugitives, and neither is the seriousness of the crime to be balanced against factors extraneous to the crime such as present or future danger to the host society or post-crime rehabilitation or expiation.

The SCC then went on to discuss how to assess the seriousness of a crime. Historically, Canada has considered a crime "serious" if the same crime in Canada is possibly (not actually) punishable by a period of imprisonment of at least 10 years. On this issue, the Court stated:

[62]                          The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17150 (FCA), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious.  I agree.  However, this generalization should not be understood as a rigid presumption that is impossible to rebut.  Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded.  Article 1F(b) is designed to exclude only those whose crimes are serious.  The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (G. S. Goodwin-Gill, The Refugee in International Law (3rd ed. 2007), at p. 179).  These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case.  While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.

Justices Abella and Cromwell dissented, with reasons.