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