Refugee Claims: Gathering Evidence, Maureen Silcoff Barrister & Solicitor

Refugee Claims: Gathering Evidence, Maureen Silcoff Barrister & 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*

Two Types of Disclosure: Disclosure 1 Personal Evidence 2 Country Documentation

Hearing Preparation Gathering 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 Preparation Gathering 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 Reports Need to indicate the qualifications, contact, and relationship with the claimant, on letterhead Must overview the client s condition Consider 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 EVIDENCE Human 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 Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB Need a psych assessment Must be done in advance of the hearing Outcome Change the order of questioning

Designated When a DR is required 1 Minor claimant 2 Incompetent claimant Role of the DR 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 index Page numbers List 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 credibility Provide 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: Procedures The 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 Client Two 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