International Law

How to win a Refugee Claim: Representations/Submissions

By immlawyer

In November 2003, I received training along with RPD Members on "RPD Reasons and Representations" from the IRB's Professional Development Branch.

In retrospect, I realize that training was very useful in my reincarnation as a lawyer practicing before the RPD.

During the training, the Members were trained and advised to approach the hearing with the intention of delivering oral reasons. While ostensibly the training recommended oral decisions because the evidence and testimony are fresh and oral reasons reduce uncertainty for the claimant (win or lose), in reality, oral decisions were required of the RPD Members because they save time - and are essential for the Board to manage its ever increasing case load efficiently.

The training "suggested" a particular approach to assimilating and organizing the information "before, during and after the hearing".

I suggest that understanding this "particular approach" will aid in preparing any counsel (and even self-represented claimants) to provide submissions which will align (if you will) with the decision makers thought process, ensuring that the relevant information is before him or her and highlighting those aspects of the claim most beneficial and hopefully succeed in establishing that the claim merits the protection of Canada under either s.96 and/or s.97 of the Immigration and Refugee Protection Act.

My suggestion for representations (based on the suggested format for decisions):

1. Introduction - the introduction of the claimant, country of reference;

2. Allegations - set out the substance of the alleged fear, including key facts from the claimant's PIF, interview at the POE and testimony before the RPD. Allegations describe "in a nutshell the reasons for the claimant's belief that he or she is a CR or a person in need of protection". The purpose of reitering these alleged events is to orient the Member, to reiterate the essentials of the claim to the decision maker;

3. Brief summary of key findings or elements in the claim that support a positive determination;

4. Directly ask the Member to find in favour of the claim (I like to be direct here, and follow up again at the end);

5. Provide your analysis of why the claim should be accepted, noting identified issues (almost always credibility, subjective/objective fear, state protection and IFA if applicable) and discussion of how those (determinative) issues can be resolved in your (or your clients) favour (ie. the testimony/allegations are supported by evidence, including country condition evidence -- NOTE point out the sources of information in support of the allegations, buttressing the objective basis of the claim or the claimant's behavior is consistent with the behavior of someone in fear - supporting the subjective basis of a fear - or that the claimants efforts to secure state protection has overcome the presumption of state protection) -- NOTE - the ability to discuss the resolution of determinative issues requires knowledge of the leading jurisprudence dealing with credibility, delay, nexus, risk to life, state protection, IFA, exclusion etc. etc.;

[To focus your analysis, ask yourself what the determinative question that the decision maker will need to resolve to decide in your favour. If the critical question is "Whether the claimant, as a national of Mexico is able to obtain adequate state protection", the analysis will need to deal with the efforts to obtain state protection (if applicable)/whether the claimant has overcome the presumption discussed in the leading case on state protection]

6. Also - you may need to respond to opposing argument - whether this is forwarded by the attending Tribunal Officer (formerly known as Refugee Protection Officer) or Minister's counsel (as CIC can intervene in refugee claims). You may want to rebut the opposing argument prior to your analysis which should highlight the positive elements of the claim; and

7. Conclusion - simple concluding paragraph reiterating the decision you are seeking.  

Also:

Don't ignore the problem elements - address them directly - I think the Member will appreciate the forthrightness, and rather than have those problems go unaddressed by you, you may as well try and put the best light on them that you can; 

Establish the following:

1. Identity and country of origin;

2. Is there any exclusion issues (like 1Fa)?;

3. What is the harm feared? Who is the agent of persecution or perpetrator of this alleged harm?;

4. Why is the claimant particularly at risk? Is there a serious possibility of this harm being inflicted? (the 'standard of proof' is not a balance of probabilities, but somewhat lower);

5. Is there somewhere else in the country of origin that the claimant can go and be safe (IFA)? Is there adequate state protection in the country of origin (state protection)?

Full post as published by Canadian Immigration Blawg on June 17, 2008 (boomark / email).