Viewing entries tagged
canada refugee lawyer

How to Make a Successful Refugee Claim in Canada: Top 5 Things You Need to Know

How to Make a Successful Refugee Claim in Canada: Top 5 Things You Need to Know

I’m thankful this holiday season that Canada has among the highest refugee claim acceptance rates in the world, at a bit over 50% (looking at multi-year averages). Now don’t get too smug fellow Canadians, we’ve got an extremely low percentage of refugees to population ratio because we’re so difficult to get to (Lebanon currently has the highest ratio in the world). But for those who do manage to get here, and make claims, and run refugee hearings, the odds are (slightly) in their favour of being believed and accepted. 

By comparison, the United States historically has a bit over a 30% claim acceptance rate. And Japan’s refugee acceptance rate is a stunning 0.1% (20 people accepted out of 20,000 claims in 2017). 

While a majority of states have signed onto the 1951 United Nations Convention on the Status Refugees, the authorities in each country who process refugee claims clearly have dramatically differing views on who qualifies as having “a well-founded fear of being persecuted by reasons of race, religion, nationality, membership of a particular social group or political opinion ... and ... unable ... to avail himself of the protection” of his or her home country, which is the definition of a refugee set out in Article 1 of the Convention. 

So if you or someone you know is thinking of making a refugee claim in Canada, or is part way through the process of having a claim considered, here are five of my top tips for success as a lawyer who represents claimants before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) in Ottawa, Montreal and Toronto. 

1. You Can Only Make a Direct Refugee Claim From Inside Canada

I’m often contacted through the Internet by people wanting to assist others who are overseas in making refugee claims in Canada. Unfortunately there’s nothing I can do until those people are physically inside Canada. 

If you’re outside Canada, you can work with the United Nations High Commissioner for Refugees (UNHCR), establish your credentials as a refugee, and ask that you be considered for resettlement in Canada. But you can’t directly make a Canadian refugee claim from overseas. So you can’t show up at a Canadian embassy. And you can’t mail in forms from abroad. 

Being physically inside Canada in order to make a direct refugee claim is just the way the system works. 

Though for some of those overseas who are effectively refugees, they might have other Canadian immigration options that can be dealt with from abroad. Temporary residence in Canada as workers or students. Or perhaps even permanent residence through one of the many programs the Government of Canada and its provinces run. Being a refugee doesn’t preclude you from other application options. But having education (preferably to the level of a Masters degree) or experience in an in-demand occupation, good English or French skills (and ideally knowledge of both), and being of a younger age may all be necessary to qualify. 

2. You Need to Demonstrate Objective Fear of Persecution in the Future if You Were to Return

This means you can’t just show fear in the past. You need to present evidence of how things are now, and how they will be if you return. So you may need to reach out to those still in your country to origin to gather evidence on current conditions. Or at least provide compelling third party documents to support the basis for your fear for the future.

And the persecution must be personal to you, not just a generalized risk. So you need to present concrete examples of personal events and threats which happened, and possibly continue to happen from a distance. Don’t be general. Get very specific. 

3. You Need to Offer Lots of Detail in you BOC

The Basis of Claim (BOC) document that every refugee claimant is required to complete at the time a claim is submitted to the Government of Canada is THE key document to the entire refugee claim process. It should not be treated as a brief introduction to the claim, with more detail to be offered later in subsequent documents and oral testimony at a refugee hearing. 

The IRB will want to know why you are now offering all sorts of details and examples at your refugee hearing, if you didn’t mention them in your BOC. Even though the honest answer might be that you were only provided with a few days to complete the BOC, and you’ve now had lots more time since then to think of additional information, the IRB may doubt the credibility of the new information. So try to ensure it all (or at least most of it) shows up in the original BOC. Lots of time needs to be spent preparing the document.

You can attach lots of extra pages to a BOC. You aren’t limited to the space provided in the forms. 

4. You Need to Support Your Claim with any and all Documents

Even though you know you’re telling the truth. And others believe you. That doesn’t mean the IRB is going to believe you. 

The IRB is used to hearing people lie. All the time. Again and again. And there is no magic technology that helps Board members distinguish between the liars and the truth tellers. In fact, trying to tell who is and isn’t lying solely from physical presentation is a sure fire way to be culturally biased, since every culture has its own unique ways of story telling and presenting information to officials. In some cultures eye contact might be acceptable; in others it won’t be. 

Thus the best way to be believed is to present documents which independently and objectively prove your case. You should present documents that are personal to you, and also documents that generally address the issue in question in your home country. So if the question is persecution due to gender and forced marriage, do you have emails/Facebook messages/text messages or letters concerning marriage arrangements? Do you have documents concerning the laws or practices in your country concerning those issues? 

Testimony from third parties can also be of help here, and often takes the form of written sworn affidavits, which can be sworn in your home country. 

All documents need to be officially translated into English or French in order for the IRB Board members to read them. But if you have last minute documents in your own language, and have requested an interpreter, some Board members may permit the interpreter to read short passages of the documents to confirm their content. 

While people fleeing their home with only the clothing on their backs might not flee with any documents, you need to make extensive efforts after your arrival in Canada to obtain whatever documents you can. For example, a huge issue at IRB hearings is proof of country of origin, and demands that a document be produced to show where you were born. While this might practically be very difficult to obtain, you should still consider if there is any kind of documentation - including testimony from community members - which might help establish your origins. 

5. You Need to be Prepared to Defend Your Story at Your Refugee Hearing Before the RPD of the IRB

Your refugee hearing before the Refugee Protection Division of the IRB is like a mini-trial before a judge in a court of law. Most hearings last between two and three hours. You should be prepared with good answers to lots of questions posed by the Board members deciding your case.

The refugee hearing is quite minimalist compared to a normal court trial. There is only one official present - the Board member - who presses the record button on the audio recorder, brings in his or her own documents, and asks all the questions. There usually isn’t a representative from the Minister there to ask questions - any submissions are made in advance by the Minister in writing. Your lawyer is also permitted to ask questions, but only after the Board is finished its questioning.

Be prepared for extensive questioning by the Board member. Be prepared to be challenged on your story. Be prepared for minute contradictions between your BOC and your story at the hearing to be pointed out to you, and explanations demanded. Questioning is one of the only ways a Board member can attempt to sort out truth from lies. And through questioning a Board member may even help you in articulating a well-founded fear of persecution. But don’t depend on the Board member to ask your the right questions. Be prepared in advance with lots of detail in your story. 

The most common mistake I see claimants make at refugee hearings when relating their stories is not giving details. Or getting stuck in vague generalizations. 

The Board need to hear the names, the dates, the places, and the minutiae of every experience, conversation and event that is relevant to your claim, It’s only by providing those details that your story will sound truthful. Take your time. There’s no rush. The Board really wants to know all the details. The more detail, the better to establishing your claim as a refugee in Canada.

Gordon Scott Campbell is an immigration, citizenship and refugee lawyer practicing throughout Canada, who has previously served as legal counsel to the IRCC and CBSA and argued public law cases as high as the Supreme Court of Canada. Learn more at compleximmigration.ca.