By Laura Schemitsch, Canadian Immigration and Refugee Lawyer and Torah Justine Lee, Articling Student, Heron Law Offices
Assessing Refugee Claims and Credibility
Canada’s refugee determination system is complex. RPD Board Members of the Immigration and Refugee Board of Canada (“IRB”) are tasked with determining whether a claimant is a Convention refugee under Section 96 of the Immigration and Refugee Protection Act (“IRPA”). Refugee claimants must have a well-founded fear of persecution in their country of origin on the grounds of race, nationality, religion, particular social group and/or political opinion. To make this determination, Board Members must decide whether they believe a claimant’s evidence, and in doing so, they are assessing the claimant’s credibility.
Challenges Faced by SOGIESC Asylum Seekers
Given that homosexuality is still illegal in 64 countries worldwide, a pressing concern for many asylum seekers is persecution based on their sexual orientation, gender identity, gender expression, and sex characteristics (SOGIESC). Many SOGIESC individuals face violence, discrimination, legal persecution and even death in their home countries, leading them to seek asylum in safer countries like Canada, where same-sex marriage has been legal since 2005.
Legal Framework and Guidelines for SOGIESC Claims
International guidelines, such as the UNHCR’s Guidelines on International Protection No. 9, provide a framework for assessing asylum claims based on SOGIESC, ensuring these individuals are not unjustly denied protection. In Canada, under Section 96 of the IRPA, an individual may be considered a refugee if they have a well-founded fear of persecution due to one of the five grounds outlined in the 1951 Refugee Convention, including “membership in a particular social group.” For SOGIESC individuals, this often includes persecution based on their sexual orientation, gender identity, gender expression, or sex characteristics. These legal provisions emphasize the need for fair and thorough evaluation of SOGIESC refugee claims to ensure protection for those facing such serious risks.
The Role of RPD Board Members in Evaluating SOGIESC Claims
RPD Board Members assessing these claims have a duty to evaluate each case carefully, and they should follow the guidelines outlined by the IRB’s Chairperson’s Guideline 9: Proceedings Before the IRB Involving SOGIESC. These guidelines aim to ensure a fair and thorough review of SOGIESC-based claims and that these claims are handled with the necessary sensitivity and care.
Case Study: A Wrongfully Denied Refugee Claim
However, in some cases, Board Members fail to apply these guidelines properly. Heron Law Offices was recently retained by a client whose refugee claim was denied on the basis that they were not credible. Our client was represented by different counsel at the RPD and was seeking to appeal the decision. Negative credibility findings are particularly difficult to overcome, as they can suggest that the Board Member believed the applicant was being untruthful. Over the course of several client meetings, it became apparent that our client had been inadequately represented at the RPD, including being advised to withhold important information related to their sexuality and incidents of past persecution in their Basis of Claim which later came up at the hearing. In addition to inadequate representation, we argued the Board Member erred in properly applying the SOGIESC guidelines. This failure to properly consider the evidence, coupled with the inadequate representation, compromised the fairness of the hearing and impacted the outcome of the claim.
Successful Appeal and the Importance of Legal Representation
Our client strongly believed their refugee claim had been unjustly denied. With determination, significant preparation and legal strategy, we successfully challenged the negative credibility on the basis of inadequate representation. The RAD recognized that the Appellant had inadequate representation at the RPD which constituted a breach of natural justice. As a result, the appeal was granted, and the matter was referred back to the RPD for redetermination with an opportunity to prepare a new Basis of Claim. This victory underscores the importance of effective legal representation in the refugee claim and appeal processes.
If you are interested in discussing the refugee claim or appeal process, please contact Laura Schemitsch (she/her) for a consultation at info@heronlaw.ca.
