Refugee Hearing Preparation: A Guide for Refugee claimants

Transcription

1 Refugee Hearing Preparation: A Guide for Refugee claimants Are you waiting for your Refugee Hearing? This information booklet provides information and suggestions that can help you prepare well for your hearing day. Here are three important guidelines to keep in mind as you begin: 1. Start now! It is natural to want to avoid thinking about your hearing, especially if doing so makes you feel anxious. However, if you do not begin planning for your hearing now, you are likely to experience greater stress later. Preparing well takes time, energy, and persistence, but it can make the difference between a positive and negative decision on your claim. By starting early, you ensure yourself the greatest chance for success!! 3. Take responsibility for your own claim! Legal Aid does not always provide you a lawyer for your hearing. Even so, you will not know either way until a few months before your hearing. This means that YOU must take responsibility for the success of your case. YOU must be proactive in collecting evidence that shows your story is true and that you genuinely need Canada s protection. 2. Find help from a lawyer! If you have the means, hire your own lawyer and begin meeting together now to discuss what kind of evidence you will need to gather. Settlement agencies can provide you with a list of lawyers. Prepared by Salsbury Community Society (Kinbrace), March 2010 This is not a legal document and does not replace professional legal advice Gathering and Submitting Evidence Legal Issues to Consider Preparing for the Hearing Day In the Hearing Room Definitions and Contacts

2 #1B Your Preparation Timeline PIF filed in 28 days Several months after filing your PIF: You will receive a Screening Form from the IRB summarizing the main issues to be discussed at your hearing and providing specific instructions as to what documents you must obtain. 1-4 months before your hearing: You will receive a letter from the IRB containing your hearing date and time. You must reply to confirm your attendance. At least 20 days before your hearing: Submit to the IRB copies of all evidence, with translations, and the names/details of any witnesses who will participate at your hearing. Your refugee hearing 6-18 months waiting period: Begin immediately gathering necessary identity documents and evidence to support your claim. If you are able, hire a lawyer to help. Read the Screening Form carefully to see what issues you will be asked about at your hearing. Prepare to answer questions on these issues and gather evidence to support your answers. Apply for a legal aid lawyer 10 months after you submit your PIF or as soon as you receive notice of your hearing date. If denied, hire your own lawyer! If you cannot do so, continue preparing and gathering evidence on your own. Ensure that all evidence is translated into English or French and submitted before the 20 day deadline!! Acknowledgements Salsbury Community Society (Kinbrace) is grateful to the following agencies and individuals who have contributed to the development, translation, and printing of this guide: the United Nations High Commissioner for Refugees (UNHCR), Settlement Orientation Services (SOS), the Mennonite Central Committee British Columbia (MCC BC), the Vancouver Airport Chaplaincy, and members of the Refugee Lawyers Group..

3 #2A Gathering and Submitting Evidence A. Gathering Evidence Begin gathering evidence to support your claim as soon as possible. If you have a lawyer, stay in regular contact and seek advice about what pieces of evidence are most important for you claim. In general, you will need two kinds of evidence: 1. Evidence Specific To Your Claim: This type of evidence demonstrates that the risk you face is personal and particular to you, and is not a risk faced generally by people in your country. For example: Photographs, letters, police reports Report from a doctor or hospital records Psychological report from a psychologist News articles about people connected to your case Testimonies from witnesses or people in situations similar to yours You will also need identity documents to prove your citizenship and to support your account of your experiences. (School transcripts, membership cards, proof of employment, and so on.) Your PIF is another important piece of evidence specific to your claim. Re-read your PIF now to make sure that all the information is correct and all the important details of your story are mentioned. If you find a mistake, make the necessary correction and submit it in writing to the IRB as soon as possible. 2. Evidence Of Human Rights Conditions In Your Country: This type of evidence includes reports from well-respected and objective sources which document human rights abuses, statistics, and other country facts that relate to an aspect of your claim. For example: reports from human rights organizations, media releases, news articles The National Documentation Packages (NDP), located in the IRB Documentation Centre, are a good place to start your research. The decision maker at your hearing already has access to documents inside the NDP, so you do not need to bring them to your hearing. However, if you find a specific article that supports your case, it is a good idea to copy it, highlight the relevant sections, and submit it to the IRB anyway. Location: The IRB Documentation Centre, 17 th Floor, 300 W. Georgia St., Vancouver Hours: Monday Friday, 10:00am 2:00pm Portions of the National Documentation Packages are also available online and in various languages at: Gathering and Submitting Evidence Legal Issues to Consider Preparing for the Hearing Day In the Hearing Room Definitions and Contacts

4 #2B Gathering and Submitting Evidence B. Submitting Evidence All documentary evidence must be translated into English or French and submitted to the IRB AT LEAST 20 days before your scheduled hearing date! It is your responsibility to meet this deadline. You may begin submitting evidence as soon as it becomes available to you. Do not leave it until the last minute! IF YOU MISS THE 20 DAY DEADLINE, you should still file the evidence. However, at the hearing, the Member may ask you to explain why you filed the evidence late, and may not accept it. Keep in mind that if you cannot obtain an important document, you should submit proof of the steps you took to try to obtain it. For example, even if you do not think that the hospital in your country of origin will provide you with your medical records, you should write the hospital requesting the documents anyway. Submit copies of this letter to the IRB. You must submit 2 photocopies of all your documents, including travel and identity documents. If the IRB informs you that Minster s counsel (a representative from CBSA) will be present at your hearing, you must provide 3 copies. Also, remember to make an extra copy for your own records. Bring the original documents to your hearing. Your evidence should be formatted as follows: table of contents all pages numbered single-sided letter-sized paper (8.5 X 11 ) Each translation must be accompanied by a translator s declaration which includes: the translator s name the original language of the document a statement signed by the translator confirming that the translation is accurate. Remember, if you have a lawyer, stay in regular contact! Submit your evidence to him or her as soon as you obtain it. This way, your lawyer can begin preparing all your documents as early as possible.

5 #3A Legal Issues to Consider In order to have your refugee claim accepted in Canada, you must demonstrate that you meet the legal definition of either Convention refugee (section 96) or person in need of protection (section 97) as defined in the Immigration and Refugee Protection Act of Canada (IRPA). This means that you must demonstrate that if you return to your country of origin, you are likely to face either: serious risk of persecution based on your race, religion, nationality, political opinion, or membership in a particular social group*... Convention refugee section 96 of the IRPA or and danger of torture, risk to your life, or risk of cruel and unusual treatment or punishment... Person in need of protection section 97 of the IRPA that you face this risk in all regions of your country and that your own country cannot protect you. *Note: persecution for membership in a particular social group may be interpreted widely and includes persecution based on gender, sexual orientation, disability, family group, etc. To prove that your situation meets the above criteria, you will need to provide the IRB with documentary evidence confirming your: 1. Identity: What documents can you provide that prove you are who you say you are? and 2. Credibility: What documents can you provide to prove that your story is true? Start now to obtain identity documents that confirm aspects of your identity that are important to your claim (e.g. passport, national identity cards, birth certificates, membership cards from your religious, political, vocational, social, or ethnic organization, etc.) If you cannot obtain these documents, you may have to explain why at your hearing. Start now to obtain documents that confirm that the events mentioned in your PIF really happened (e.g. country reports showing similar human rights abuses, medical/hospital records or receipts, police reports, photographs showing injuries, testimonies from witnesses, letter of diagnosis from your doctor or psychologist, etc.) Legal Issues to Consider Preparing for the Hearing Day In the Hearing Room Definitions and Contacts

6 #3B Legal Issues to Consider You will also need to address one or more of the following issues: 3. State Protection: The IRB assumes that your country can protect you unless you can convince them otherwise! If you sought protection from authorities in your country, you must provide documentary evidence. If you did not, you must explain why and demonstrate that it would have been unreasonable for you to do so. Finally, the more democratic Canada perceives your country s legal/political system to be, the stronger your evidence must be in showing that your state cannot protect you. What documents can you provide to demonstrate that your own state cannot protect you? (e.g. country reports showing lack of protection and/or corruption, denunciations made by you to the police, sworn testimonies from people who are in a situation similar to yours and whom the authorities have not protected, etc.) 4. Internal Flight Alternative (IFA): If the IRB believes you could live safely in another region of your country, your claim will not be accepted. Thus, you must provide evidence that demonstrates: 1. you cannot live safely in another region of your country (especially in one of the larger cities) 2. it would be unreasonable for you to try to live in a different region (given your age, gender, or particular circumstance.) or What documents can you obtain that demonstrate one or both of the above? (e.g. documents showing that you changed locations within your country but were still targeted, news articles confirming that your perpetrators operate in all regions of the country, human rights reports confirming that people in your circumstance are discriminated against in other regions of the country, etc.)

7 #3C Legal Issues to Consider 5. Subjective Fear: You must show that your fear of persecution is genuine. If you sought protection right away, for example, that often suggests that you had a genuine fear. Here are some of the questions the IRB asks when they consider whether or not your fear is genuine. If your answer to any of the following is yes, you will likely be asked to explain the reasons. Take time now to prepare your explanations, so that you will not be surprised by these questions at your hearing. a. Did you return to your country of persecution after you left? If yes, explain. (Legal issue: Re-availment) b. Did you pass through another safe country on your way to Canada but did not make a refugee claim there? If yes, explain. (Legal issue: Failure to claim elsewhere) c. After you experienced persecution in your country, did you stay in your country even though you had the opportunity to leave sooner? If yes, explain. (Legal issue: Delay in departure) d. Did you wait for a while before making a refugee claim after you arrived in Canada? If yes, explain. (Legal issue: Delay in claiming) Finally, the IRB may question you about a variety of other legal issues specific to your claim. The Screening Form lets you know in advance what some of these issues will be: Screening Form Several months after you file your PIF, you will receive a package in the mail containing a Screening Form as well as a list of documents related to your claim. Read the Screening Form carefully! It summarizes the main points of your claim and identifies some of the issues you will be asked about at your hearing. The section entitled Instructions to counsel/claimant identifies specific documents you must obtain and submit before your hearing (in addition to those you are already gathering). Legal Issues to Consider Preparing for the Hearing Day In the Hearing Room Definitions and Contacts

8 #3D Legal Issues to Consider Legal Representation If you received the help of a legal aid lawyer through Legal Services Society (LSS) for the preparation of your PIF, do not assume that the same lawyer will represent you at your hearing. Remember that you must re-apply to obtain a lawyer to represent you at your hearing. You may re-apply at your local legal aid office 10 months after you submit your PIF or as soon as you receive your hearing date, whichever comes first. For best results, include with your application the name of a specific lawyer with whom you would like to work and who has agreed to take on your case. (Remember that you must first contact the lawyer to obtain his or her permission!) It is a good idea to ask the same lawyer who helped you with your PIF because he or she is already familiar with your case. Also, let legal aid know if you need a lawyer who has expertise in a particular focus (e.g. sexual orientation, violence against women, a particular country, etc.) You can apply for a lawyer by phone at (Lower Mainland) or (toll free, outside the Lower Mainland). You may also apply in person through your local legal aid office: Vancouver Legal Services Society Vancouver Regional Centre Suite Burrard Street Vancouver, BC Phone: Surrey Legal Services Society Surrey Regional Centre Suite 1370, Central City Tower One nd Avenue, Surrey BC Phone: Remember that legal aid may deny your application for a lawyer if they believe your case is not strong enough or if your income is too high. If denied, you are best advised to hire your own lawyer. If you know that paying for a lawyer will be difficult for you, plan ahead! Begin setting aside a small amount of your earnings each month. Even if you are not able to save the full amount of legal fees in advance, you may be able to negotiate a plan with your lawyer to pay in small amounts over several months. Finally, if you cannot obtain a lawyer, continue preparing on your own as best you can!

9 #4A Preparing for the Hearing Day Staying healthy as you await your hearing: You will likely wait one to two years for your refugee hearing. For many people, this waiting period can be difficult, stressful, and frustrating. It is important to develop practices in your life here in Canada that can help you stay as healthy and balanced as possible as you await the outcome of your claim. Suggestions include: Establish stable supportive relationships with two or three people you know you can trust to be there for you throughout your refugee claim process. Stay physically active: walk, run, cycle, play sports or use the fitness room at a community centre Eat well: make sure your body is getting full and balanced nutrients Try to get enough sleep by avoiding caffeine and other stimulants Become involved in a faith community (church, mosque, temple, etc.) Ask a settlement worker about how to make more connections in the community Join a yoga class Listen to music Make music with people! Dance Meditate Pray Breathe deeply Spend time in nature Take time to play and have fun! Take time to laugh Set a small goal for yourself and accomplish it Attend a READY (RPD orientation) tour! Preparing for the Hearing Day In the Hearing Room Definitions and Contacts

10 #4B Preparing for the Hearing Day Preparation Checklist When you receive notice of your hearing date: Apply to legal aid (Legal Services Society) for a lawyer to represent you at your hearing if you do not already have one. Continue to gather necessary evidence and prepare translations for your hearing. If you have a lawyer, maintain regular communication with him or her in the months and weeks leading up to your hearing. Sign and submit the confirmation of readiness form to the IRB (found in the same package as your notice to appear ). Re-read your PIF and ensure that all the information is correct and complete. Check for errors or missing details. Also, if new incidents have occurred since submitting your PIF, you will need to add them! Write to the IRB immediately to inform them of the necessary changes or additions. In the weeks before your hearing, the IRB will send you an exhibits list which lists all the documents that will be used at your hearing as evidence. Read through the exhibits list and ensure that you have a copy of all documents that will be used at your hearing. Submit 2 copies of all your evidence (3 copies if Minister s counsel will be present), translated into French or English, to the IRB (at least 20 days before your hearing date). Make an extra copy of all your submitted documents for your own record. If you are bringing a witness to your hearing who will testify, submit the witness name and contact information to the IRB (at least 20 days before your hearing date). Ensure also that your witness knows the time, date, and location of your hearing. Arrange for childcare: if you have young children who are included in your refugee claim, you will need to bring them with you to your hearing so that they may be identified, but they will not remain inside the hearing room. Thus, you will need to bring someone with you to your hearing who can look after them outside the hearing room while your hearing is in session. If you are employed, notify your employer that you will miss work on the day of the hearing. If you want to bring a friend or family member to observe your hearing, advise him or her of the time, date, and location.

11 Frequently Asked Questions: #5A In the Hearing Room Where will my hearing take place? At the Immigration and Refugee Board, Library Square, 18 th Floor, 300 W. Georgia Street, Vancouver BC. What should I wear? There is no specific dress code. On your hearing day, wear clothing that lets you feel comfortable, calm, and presentable. Clothing should be clean and neat, but it does not necessarily have to be fancy. Your clothing should allow you to feel like yourself, while demonstrating that you recognize the importance of this day. When should I arrive? Plan to arrive at the IRB at least 30 minutes early! What if I feel overwhelmed or start to cry? If you start to feel overwhelmed at any time during the hearing, you are welcome to take the steps you need to in order to regain your calm. These may include: pausing to take 3 or 4 deep breaths before continuing to speak. asking for water requesting a short break. Remember, this is YOUR day. You are the most important person inside the hearing room, and you are encouraged to do whatever you need to do to remain as relaxed and calm as possible. What if I believe the interpreter made a mistake? Address the problem immediately. Tell the decision maker directly that you believe the interpreter made a mistake. Repeat your original words or repeat the same idea using different words until you are satisfied with the translation. If you are still not satisfied with the translation, tell the decision maker. Who is at my refugee hearing? Presiding Member (Makes the decision) Tribunal Officer (Present if needed. Questions the claimant. Role is neutral: neither for nor against.) Minister s Counsel (Present only at selected cases: Representative from CBSA. Role is to advocate against the claimant) Claimant s Counsel (Present only if hired by the claimant or legal aid. Advocates for the claimant.) Refugee Claimant Interpreter (Present if needed. Role is neutral.) Observers: You may invite a friend or family member. A representative of the UNHCR may also observe your hearing. She observes selected hearings to monitor the refugee process. Witnesses: Witnesses who testify at your hearing stay outside the hearing room until they are called to speak. They may also testify by telephone. If the call is long distance, bring along a calling card. In the Hearing Room Definitions and Contacts

12 #5B In the Hearing Room Confidentiality: All refugee hearings are confidential. This means that all persons present in the hearing room swear an oath to keeping all matters related to your claim confidential. All interpreters are paid professionals and are also bound by an oath of confidentiality. Recording: Microphones in the hearing room record your hearing to ensure your safety. If you receive a negative decision and believe the decision maker has made a mistake, you may apply to the Federal Court for a review of the decision and request a copy of the recording of your hearing from the IRB. Order of Proceedings: 1. Introductions, administrative details, and swearing of oath 2. Questioning: Questions asked in the hearing room will focus on the issues previously identified on the Screening Form that you received. Normally, you will be asked questions by the following people in this order: a. The Tribunal Officer (if present) b. Minister s Counsel (if present) c. The Presiding Member d. Counsel (if present) 3. Observations and Submissions: The tribunal officer and counsel (if present) summarize the relevant evidence that has been presented. If you have counsel, he or she may have the last word by presenting submissions, or a final argument in your favour, taking into account all the issues addressed at your hearing. 4. Decision: The decision maker may make a decision orally at the end of the hearing, or she may take more time. If she takes more time, you will receive the written decision in the mail. If the decision is positive, you will receive an application for permanent residence in the mail. You must apply within 6 months. If the decision is negative, you have 15 days to submit an application to the Federal Court for judicial review of the decision. If you wish to do this, consult a lawyer immediately.

13 #6A Definitions and Contacts IRB - RPD: CIC: CBSA: UNHCR: PIF: IFA: IRPA: Immigration and Refugee Board - Refugee Protection Division Citizenship and Immigration Canada Canada Further Border Services Information: Agency United Nations High Commissioner for Refugees Personal Information Form Internal Flight Alternative Immigration and Refugee Protection Act Abandoning a claim: Failing to do all things required for the IRB to make a decision about your claim (for example, if you fail to provide your PIF on time, fail to appear at a hearing, or fail to communicate with the IRB when you are asked to do so). Failing to do any of these things may lead the IRB to conclude that you do not wish to continue with your claim. If the IRB determines that your claim has been abandoned, you lose the right to have your claim decided. Convention refugee: A person who meets the definition of refugee in the 1951 United Nations Convention Relating to the Status of Refugees. In general, it is someone who has left his or her home country and has a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group, and is unable or, by reason of that fear, unwilling to seek the protection of his or her home country. Designated representative: A person who is responsible for explaining the refugee process to children under the age of 18 (or to adults who are unable to understand the proceedings) and for protecting their interest in the process. This person is usually a parent, but can be another family member, a friend or a social services worker. Excluded person: A person who cannot be considered a Convention refugee or a person in need of protection. This includes people who have committed a serious, non-political crime outside Canada, a crime against peace, a war crime, or a crime against humanity. It also includes people who are guilty of acts that are contrary to the purposes and principles of the United Nations, or who have taken up residence in a country where they have rights and obligations that are similar to those of a citizen o that country. Person in need of protection: A person in Canada who would face a danger of torture, a risk to his or her life, or a risk of cruel and unusual treatment or punishment if he or she were returned to his or her home country. Withdrawal: A claimant s decision not to continue with his or her claim. To withdraw a claim, a claimant must inform the IRB of this decision. Definitions and Contacts

14 #6B Definitions and Contacts Three different government agencies are involved in your refugee claim process. Each has its own role and contact information. You must advise each agency separately if you have a change of address. Citizenship and Immigration Canada (CIC) Role in your claim process: Processes your application to begin a refugee claim (from within Canada) and decides if you are eligible to make a claim. If you are eligible, passes your claim information to the IRB-RPD. Additional responsibilities: CIC also processes your work permit application and your interim federal health insurance. Contact information: 1148 Hornby Street, Vancouver BC, V6Z 2C3 CIC Call Centre: Immigration and Refugee Board Refugee Protection Division (IRB-RPD) Role in your claim process: Receives and processes your Personal Information Form (PIF). Administers your refugee hearing. Decides whether your refugee claim is accepted or rejected. Contact information: Library Square, 16 th Floor 300 W. Georgia St. Vancouver BC, V6B 6C9 (IRB Documentation Centre: 17 th Floor) Telephone: Fax: Website: Canada Border Services Agency (CBSA) Role in your claim process: processes your application to begin a refugee claim (at a border, seaport, or airport) and decides if you are eligible to make a claim. If you are eligible, passes your refugee claim information to the IRB-RPD. Additional responsibilities: Controls Canada s borders and decides who can enter Canada and who must leave. If you receive a negative decision on your refugee claim, CBSA arranges your removal from Canada. Also, CBSA has the right to detain you if they cannot confirm your identity, if they believe you may be a danger to Canadian society, or if they believe you are not going to comply with one of Canada s immigration laws. (If you are detained, you have the right to a lawyer immediately and a hearing will be held within two days to discuss your release.) Contact information: 7 th Floor, Library Tower, 300 W. Georgia St., Vancouver BC Further Information For further information on the refugee claim process and resources available to refugee claimants, consult the following: Your Guide to the Refugee Claim Process Legal Services Society (LSS) Vancouver Refugee Services Alliance Information Kit for Refugee Claimants distributed by the Canadian Red Cross, First Contact program (If you do not already have this kit, ask a settlement worker for one!)