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Refugee Claims: Gathering Evidence,
Maureen SilcoffBarrister & Solicitor
Preparation & Time Shortened timelines for
Hearing Dates: They differ for different types of claims
Non-DCO claimants: 60 days
DCO claimants:
Port of Entry Claims: 45 days
Inland Claims: 30 days
Not all Claims are Created
but they should be… We Welcome Refugees!
Advising Clients about Disclosure
Claimants need to be aware of the deadlines for disclosure - 10 days before the hearing
Importance of explaining what disclosure is for:
*Disclosure is the documentation to establish the experiences put forward in the claim: it
should include anything that corroborates the claim*
DisclosureTwo Types of Disclosure:
1 – Personal Evidence
2 – Country Documentation
Hearing PreparationGathering Evidence
Gathering personal evidence: meet with client to determine what evidence is needed to support the claim
Create an itemized list that each of you has a copy of
Ensure that a deadline is set to receive the documents before disclosure is required If translation is required allow time for this as well
Hearing PreparationGathering Evidence
Originals are NOT required at the disclosure stage
Originals ARE required at the HEARING Make sure that if anything is received by mail
that the envelope is kept: this confirms the date and origin
What Personal Evidence is Needed?
Medical Reports, Psychiatric Reports, Therapist ReportsNeed to indicate the qualifications, contact, and
relationship with the claimant, on letterheadMust overview the client’s conditionConsider whether the report is helpful to the case
before disclosing* Note for DCOs - Legal Aid will cover the cost of
the letter but not the appointment itself. Who will cover this cost?*
More evidence… Police reports Hospital records and doctor reports Statutory declarations from witnesses, friends &
family ID documents Documents to place a person in the country at the
time of persecution Confirmation of political party membership Letters from community based organizations
NOTE…..
COUNTRY EVIDENCEHuman rights reports that are not in the Board’s
National Documentation Package – important to offer up to date reports
Possibly expert opinions prepared for the issue in the claim
Applications for Designation How to Apply Outcome Guideline on Procedures
with Respect to Vulnerable Persons Appearing Before the IRB
Need a psych assessment Must be done in advance of
the hearing
Change the order of questioning
Designated When a DR is required Role of the DR1 – Minor claimant
2 – Incompetent claimant
Meet with claimant Ensure counsel is retained Assist claimant is obtaining
evidence Attend hearing, testify and
offer submissions Meet with claimant and
counsel
Meeting to Review the Personal Evidence
Ensure consistency between the evidence and the BOC
Ensure internal consistency within the evidence Make copies of all documents and return
originals to the client
*Do Not Keep Originals*
Translation and Ensure that this is NOT done by a friend/ family
member: Reluctance to share information that is important to the
claim
Proving the Claim: What if you can’t get the documents?Document Efforts:
Date, time, action of attempts to obtain evidence
Check NDP for indications of how some reports are obtained. For example, document on how to obtain police reports from a country - requires power of attorney
Translation of Documents Must be exact- not
summarized Translator must swear
to the truth of the translation, but does not need to be in the form of an affidavit.
For example: “My name is XX. I am
fluent in both Y Language and English. I have translated this document from Y to English to the best of my ability and swear that it is accurate.”
Must be signed and dated, with location
Preparing the Disclosure The package includes both personal and country
evidence. It requires:An indexPage numbersList of witnesses if applicable Rule 31 - Can be sent via fax if 20 pages or less …
or else by hand
What if the Disclosure is late:
You need to provide an explanation as soon as possible
The Board has discretion to allow late disclosure: This is largely based on your explanation
Preparing the Client for the Hearing
See if there is anything new Review the claim with your client
– take the role of the Board Member and ask the tough questions
Ensure that there are no inconsistencies between the claim, the personal documentation and the country
Changing the Date or Time of a Hearing…….
By written application
Must be granted (subject to operational limitations) if:
No counsel when date was fixed, or counsel unable to provide dates when date was fixed
Counsel is retained no later than 5 working days from date hearing was fixed
Counsel is not available on the date fixed
Postponements for Medical Reasons
Done by way of application and must include: A recent medical certificate signed by a qualified
medical practitioner with a letterhead or stamp including the name and address
Original must be provided Certificate must include: particulars of the condition
that prevent the person from participate in the hearing and the date when they can proceed.
If the certificate is unavailable, must provide evidence of efforts, details of the medical reasons supported by evidence and how they are prevented from
Optional Postponements: No later than 3 working days before the hearing, unless
medical emergency OR ELSE in person Give 3 dates, within 10 working days of original hearing
date The Board must not allow the application unless there
are exceptional circumstances such as
a) vulnerable person or b) emergency or development outside the person’s
control
Adjournments at the Unless you hear otherwise, must show up
Can made a renewed application orally at the hearing, and this can include arguments about fairness and natural justice
Updating and Amending the Sometimes new
information comes to light: New occurrences Old information that
was not known Information that the
client was not comfortable disclosing
Update the claim as soon as possible: Less damage is done to the credibilityProvide an explanation for why it was not possible to disclose the information initially
How to Amend the BOC:Sign and date each amended page
Underline the changes
Declare that the information is true
10 days before the hearing
Rule 9
The Hearing
The Hearing Is: A quasi-judicial
setting
With a single decision maker
Confidential
Things that the Claimant must do on the day of the
Wear appropriate attire: This is a day to dress respectably
Bring a Holy book if an oath is preferred over an affirmation
Bring originals of ALL documents that have been disclosed
Arrive at least one 1/2 hour before the start of the hearing and sign in – practice getting to the Board in advance
Refugee Hearings and Minors: must be brought to
the hearing
They will need a babysitter
If the hearing goes for a second day, the children will not likely have to be present
The Hearing: ProceduresThe Panel will: Ask the parties to
introduce themselves Ask the interpreter to
affirm Ask the claimant to
swear an oath/affirmation
Ask the claimant to confirm that the BOC was interpreted to them
The Hearing: Process The exhibits will be
numbered to identify them
The Panel will state the issues: Credibility, State
Protection, Internal Flight Alternative, etc.
The Member will ask questions first, followed by counsel for the claimant
Testimony Role of Counsel at the Hearing:
Monitor what is said and note problems or inconsistencies
Make objections, for example where a question infringes on solicitor client privilege (“What did you tell your lawyer?”)
Ask for clarifications where the question is ambiguous, unclear, or you think that the clients don’t understand
Questioning Your ClientTwo Streams of Thought
Ask lots of questions: If your client
expresses themselves well
It is necessary in order to have all the
Fewer questions: Keep it short and
sweet if your client is not a great witness
Ask few questions and limit their content to correcting things that are incorrect
Submissions:NOT a Summary of Facts
Deal with each legal issue
Apply the facts of the case to the legal test
Apply the case law and the country evidence
Avoid generalities
Note: The Board is seeking to give about 80% “Bench Decisions”
This means that you should prepare your client to receive a decision on the day of your hearing (positive or negative)
PRRA AND H & C – POST REFUGEE
HEARING PRRA
12 mo. bar from date of Board’s final decision for non-DCOs and 36 mo. for DCOs (RPD or RAD)
This began on Aug. 15/12 – whether submitted a PRRA or not won’t be allowed to have a PRRA decision or make an application unless the requisite time has passed
Exempted Countries: Central African Republic, Egypt, Guinea Bissau, Libya, Mali, Somali, Sudan & Syria
H&C Limitations Can’t be simultaneous with Refugee claim
Must wait 12 months after Board’s final decision (RPD or RAD)
Designated Foreign Nationals: 5 year ban from date of designation
Claimants have option of withdrawing refugee claim only if no substantive evidence has been heard
Where removal would have a direct impact on the best interest of a child affected
Risk to life because of lack of health or medical care
EXCEPTIONS TO H&C TIME Will likely be applied quite strictly Evidence to support the exception will be
required such as : affidavit evidence from applicant doctor’s reports about the seriousness of the
condition evidence of lack of treatment in the home country psychological evidence about the children