A Second Chance for a Refugee Claimant

November 2015

The first file I opened in 2015 was for a man from a central African country. He had come to Canada after witnessing the murder of a member of his religious community by a man who worked in the office of the country’s President.  He reported the shooting to the police, and named the shooter. 

Later, he began receiving threatening calls – he would be put in jail, he would be killed, his family would be killed. He fled his country with the assistance of a human smuggler.  He came to Canada with only the fraudulent documents provided by the smugglers.  He was detained after he arrived, and was held at the Ottawa-Carleton Detention Centre.  He was told he would be released if he could obtain identity documents.  His cousin sent him his passport and his voter’s card.  Unfortunately, while they were out of his hands, both documents were tampered with, and the Canada Border Services Agency would not consent to release him.  He called his cousin again, only to learn that government officials had raided his house and all of his documents were seized. To his shock, he also learned that neighbours had found his wife dead in the bushes outside of their home.  His three children had been placed separately in the care of family members.  After learning this, the CBSA finally agreed to release him, after he’d already spent three weeks in jail with the local criminal population.

At his refugee hearing, he could only prove his identity with the altered passport, the voter’s card, and his word. None of these was enough for the Refugee Protection Division.  His claim for refugee status was denied because he had not provided sufficient proof of his identity.

When he came to see me, he wanted to know what could be done. He was terrified of being sent back to his country. He told me he would surely be killed. 

The only option for this client was to ask the Federal Court of Canada to review the decision, and, if it found any errors in reasoning behind the decision, to send it back to the Refugee Protection Division for a new hearing by a different Board Member. Though there is now a Refugee Appeal Division, at the time his refugee claim was filed, this option was not yet available. 

I knew the Federal Court case would be difficult. A great deal of deference is given to Board Members of the Refugee Protection Division, especially for credibility determinations.  Applying for an Application for Judicial Review is a two-step process.  First, you file an Application for Leave – leave from the court to make your arguments in front of a judge.   The chances of succeeding at this stage are less than 15%.  For those cases where Leave is granted, the chances of success are higher (closer to 44%), but this very much depends on the Judge hearing the case.

Unlike the new Refugee Appeal Division, all the Federal Court can do is order a new hearing. This means the refugee claimant must retell his story, bringing up all the bad memories again.  He must also continue to prove that he has a continuing risk of persecution. Even though many years may have passed, he must still show that if returned to his country, he would be at risk. 

My client was lucky. Last month, the Judge found in his favour.  He found that:

[Since] the RPD did not make a general finding that the Applicant lacked credibility, it was therefore incumbent on the RPD to examine the Applicant's explanation for why he was unable to provide identification documents and the steps that he had taken to obtain them… The RPD's silence regarding the Applicant's efforts to obtain additional documentation suggest that it overlooked this evidence when arriving at its decision… The RPD also failed to consider whether the Applicant provided a reasonable explanation for why he was unable to produce documentation capable of establishing his identity.  The RPD's decision in this case did not identify any inconsistencies, contradictions or implausibilities in the sworn evidence, and accordingly the presumption of truthfulness was not displaced for why he was unable to produce documentation capable of establishing his identity.

The Judge went further, chastising the Board Member:

Furthermore, this Court has repeatedly cautioned against drawing negative conclusions based on a refugee claimant's use of false documents to escape violence and persecution. It is not uncommon for claimants to flee a country with irregular documents…

So, my client will have another chance in front of another Board Member to explain why he is afraid to return to his country.

But when will that chance come? It takes over a year, and in some cases two, for new hearings to be scheduled for refugee claimants who have succeeded at the Federal Court.  In the interim, he lives with the knowledge that he may still be deported.  He cannot bring his children here to Canada until he succeeds in his claim, and they are growing up without him.

For refugees who arrived in Canada after the Refugee Appeal Division was available, a successful appeal can result in an immediate recognition of their refugee status, or their matter can be sent back for a new hearing. More than a quarter of appeals lead to a finding that the denial of the claim was based on an error on the part of the Refugee Protection Division.

The treatment of refugees by the Canadian government may be changing. This past week, our new Prime Minister Justin Trudeau announced his cabinet.  Along with new faces came a new name for the government department responsible for immigration matters.  It is now called Immigration, Refugees and Citizenship.  Let’s hope that the addition of the word ‘refugees’ is more than just symbolic.

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