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Guest Lecture: University of Winnipeg – History of Human Rights

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For many years, Alastair Clarke has given guest lectures to students at various colleges and universities across Canada, including BCIT in Vancouver (BC), Robson Hall law school (MB), students at Legal Aid Ontario (ON), Wilfred Laurier University in Waterloo (ON), Toronto Metropolitan University (ON) and, of course at the University of Winnipeg (MB). Full disclosure: Mr Clarke’s spouse is a professor at the University of Winnipeg.

Prof Kenyon at the University of Winnipeg has requested Mr Clarke to give a guest lecture on Oct 23 on Human Rights in Canada. Mr Clarke looks forward to meeting university students and hearing their feedback. This presentation will focus on recent developments in human rights laws as they relate to immigration and refugee law.

For reading, we will be covering recent challenges faced by refugee claimants who are seeking protection based on SOGIE(SC) characteristics (sexual orientation, gender identity and expression, and sexual characteristics). These claims may be particularly difficult for the RPD Member as the claimants may be from countries where they cannot be open and they have been taught their whole lives to hide their identity.

Prof Rehaag and his Research Assistant Alex Verman recently published a significant article, “TRANSGENDER ERASURE: BARRIERS FACING TRANSGENDER REFUGEES IN CANADA” on this topic. As described by the authors:

We argue that barriers to entry, obstacles to self-recognition, subjection to discrimination in Canada, and diso-rientation within the demands of the refugee status determination pro-cess, all result in what we identify as a surprisingly high success rate among transgender refugees, even as the experiences of these refugees and the lawyers who assist them is fraught, under-resourced, demanding, and traumatizing. We have chosen to describe this process using the word “erasure” in the title of this article to highlight how these policies and practices result in the systematic underreporting, invisibilization, and dismissal of the diversity, complexity, and humanity of transgender peo-ple. In other words, as we argue, despite (and at times, even through) these positive changes, transgender refugees are erased.

Currently, Canadian laws regarding human rights in various contexts are shifting. Access to Justice (A2J) issues are preventing cases from being heard. Backlogs are causing systemic problems and creative solutions are scant.

Recently, Mr Clarke attended a presentation on Reforming the Manitoba Human Rights Commission. The presentation raised serious issues that face anyone who may be seeking a remedy from a human rights violation in our province.

If you are interested in this topic, we would urge you to become informed and, if possible, take a course at the University of Winnipeg.

MB Legal Aid

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CIL WILL NOT ACCEPT MORE LEGAL AID – UNTIL THINGS CHANGE

We regret to announce that CIL has made the difficult decision to not accept any more legal aid certificates for the foreseeable future. We do not take this action lightly. We know that many clients will be disappointed. Clients regularly come to us as they have heard we are the best. They have been told to come seek our help. Communities rely on our services. Unfortunately, Legal Aid Manitoba (LAM) has failed to provide sufficient compensation for this work, despite increasing fees for other areas of law. This is simply not fair so we have been compelled to make this difficult decision.

WHY ARE WE SUSPENDING LEGAL AID?

In Oct 2022, the Government of Manitoba increased LAM tariffs for Criminal Law matters. They increased tariffs for Family Law matters. Increase for Immigration? No. Increase for Refugees? ZERO. Clearly, LAM considered the tariffs and decided they were too low. They decided to increase the moneys paid for many legal matters and made the decision not to increase tariffs for immigration and refugee matters. Is this fair?

Mr Clarke has spoken to the management at LAM and they have repeatedly promised to make things fair. We have been patient for more than 1 year. They have failed to act on their promises. Inflation has been increasing our costs of doing business. Workers are getting 9.5% wage increases. 

Based on the MB Legal Aid website, the maximum fees for a refugee hearing (from start to finish) is CAD $1,315. That is the maximum. It is extremely low. If a lawyer has a complex case, they can request a “discretionary increase”. That request goes to a committee and they review the work. How many requests for a “discretionary increase” (DI) are approved? At CIL, we have submitted many DI requests over the years and they have ALL been denied by LAM. This means that CIL is paid at a low rate for some work, and not paid at all for any additional work that may be required.

The only conclusion is that the current model is not sustainable. If we continue to accept LAM clients at unfair rates, we are supporting and condoning an unfair system.

BACKGROUND

We love helping our clients. Families. Workers. Students. Business Owners. Corporations. Refugees. We serve all our clients equally, regardless of their background. Access to justice is one of our motivating principles. We know that legal fees can be expensive so we offer payment plans. We also know that, in some cases, even our payment plans are outside the means of certain clients. Every year, we spend many hours doing pro bono work for clients and we regularly offer additional services at no additional charges. Unlike the vast majority of law firms, we publish our fees online for anyone, in any country, to review so they can make an informed decision. We have published detailed explanations regarding our one-time Administrative Fee and we have been regularly audited by the Law Society. We love the fact that we have helped so many clients win at the RPD, win at the IAD, win at Federal Court, and we have helped so many clients come to Canada as students or workers or as separated family members.

CIL is a business. We have to keep the lights on. We have to pay our bills. We have to pay salaries and bonuses to Team Members. We do not receive any grants or funding from either the provincial government or the federal government. We rely on fees paid for our work – 100%.

In Manitoba, there are 2 potential sources of fees: 1. Clients; or 2. Legal Aid Manitoba. Most law firms in Manitoba do not accept legal aid certificates. When Alastair Clarke founded CIL many years ago, a senior lawyer said:

“My best advice is to not accept legal aid. If you do, you will not be able to feed your family.”

Mr Clarke did not take that advice. CIL has accepted legal aid certificates every year and we are actively involved with the legal aid community. Mr Clarke has also been volunteering for many years at the Legal Help Centre to provide free legal advice on immigration matters.

After many years of practice, it is clear that refugees are good for Manitoba. They pay taxes. They perform valuable work during a labour shortage. Based on research from the University of Manitoba, they are a net positive for our economy, notwithstanding the fact that helping refugees is the right thing to do.

CARL WILL NOT HELP

In 2022, Mr Clarke had a meeting with lawyers in Ontario and other provinces to discuss legal aid. The meeting was organized by the Canadian Association of Refugee Lawyers (CARL). We talked about calling on the Federal Government to establish a nationwide plan and, in the end, we could not agree on a unified message. Why? One of the reasons is that Legal Aid Ontario pays lawyers much more than other provinces. In addition, unlike Manitoba, the Ontario government has recognized the importance of refugee protection so their fees increased in 2023 and they will increase again in 2024 and again in 2025. 

The refugee lawyers in Ontario do not want to risk those tariffs coming down to match the tariffs paid by Legal Aid Manitoba. This makes sense. I certainly would not want to negatively impact my colleagues in Ontario based on the lack of fairness in Manitoba.

WHAT ARE FAIR RATES?

This is a tough question. Mr Clarke regularly lets his staff know that we are in the business of saving lives. There is no price tag on that service. The average doctor in Manitoba is paid $310k for their work. Is that a fair comparison? No, not really. We want to be fair. We want to be just. We currently charge a minimum of $3,500 to assist with a refugee claim from start to finish. These procedures generally take 12 to 18 months and we work with the claimant, supporters, witnesses and members of the community to prepare the case. We need to spend enough time on each and every file to make sure our clients have the best chance at success.

Clearly, the LAM tariff of CAD $1,315 is not fair.

A Canadian law firm in Ontario charges CAD $11,250.00 for a refugee claim and hearing (minimum). I am not including a link to that law firm as I do not want to give them any web traffic. In my view, charging CAD $11,250.00 for a refugee claim is outrageous and not fair to the claimant.

 

Most people would agree the above rates are too high. Charging CAD $11,250.00 is not defensable, although I did not contact that law firm to see what justification, if any, they have for such high fees.

Our fees start at CAD $3,500 and most of our refugee claimants on private retainers pay that amount. We have not raised our fees for refugee claims since 2015. In 2020, we did a review of our fees and we noticed that law firms in Canada were raising their fees. We made the decision not to raise ours because of clients were suffering. 

 

Canadian Lawyer Magazine published the 2020 Legal Fees Survey online. Legal fees in 2021 went up. Here are the numbers for 2021. Average fees for a refugee claim in Ontario in 2021 was $5,000, for example. Based on our research, they did not publish fees for 2022 or 2023.

Based on the above, we know that we could charge more than $3,500 per claim. I know that our services are among the best in Canada. Since David Matas decided to limit his practice, Alastair Clarke is arguably the most experienced refugee lawyer in Manitoba. He was contracted by Kinbrace in BC as the Canadian expert in refugee law to oversee and draft the guide from refugee claimants across Canada. In 2023, he accepted a position as an IRB Representative for the Canadian Bar Association (CBA). Currently, he has more than 50 hearings scheduled at the RPD and he is booked until Spring 2024. Do we want to raise our fees? No.

$1,315? $3,500? $5,000? $5,750? $11,250? What is fair?

Based on 15 years of practice, I believe $3,500 CAD is fair for a refugee lawyer to charge to represent a refugee claimant at the RPD. To be frank, this should be the minimum for this type of work. I can understand how refugee lawyers in Ontario charge $5,000 and how the average fees across Western Canada is $5,750.

Alastair Clarke recently spoke with a junior immigration lawyer who is starting out. She asked about different areas of practice and LAM. Mr Clarke described the work involved and let her know that LAM pays $1,315 for this work. Her reply:

That’s it? Are you joking? How could I feed my kids? No, that can’t be right.

She is correct. It is not right. It is not fair.

THE LAST STRAW

As you have read from the above, this has been an issue that has been burning for a long time. What prompted this decision? I can share this story. In NOV 2023, we accepted a LAM to accept a family from Turkey. They have truly suffered, although this is not straightforward situation as they are relying on “generalized risk”, which is difficult in the context of a A96/ A97 determination. Regardless, we accepted the LAM file. Then we learned that the sister of the principal claimant is a physician in Manitoba. She is getting paid CAD +$300,000.00 by the Government of Manitoba to provide health care to residents in Manitoba. Could she support her brother and his family? Yes. Is she? No. She helped them apply to LAM.  It could be said that she expects to get paid CAD +$300,000.00 by the Government of Manitoba to save lives but she does not want to pay anything for us to save her brother’s life. That was the last straw.

HOW CAN YOU HELP?

We are calling on the Government of Manitoba to match the tariffs paid by the Government of Ontario for refugee services. That is all. A refugee lawyer in Kenora, ON should be paid the same as a refugee lawyer in Winnipeg. If that happens, we will accept more work from LAM

WHAT HAPPENS IF LAM FAILS TO ACT?

We will continue to represent refugee claimants on private contracts. Our fees are published online. Based on the above, I hope you agree that our fees are fair. Our clients are on payment plans. We do our best to be as flexible as possible. If you need help, we would love to work with you.

Sponsor your Brother/Sister (UKR)

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In 2005, I was a law student working at a legal aid clinic in Toronto. We served Spanish-speaking clients from all over the world. Just as at present, we were talking to people every day, trying to help them navigate the Canadian immigration system. Everyone wants to come to Canada. At that time, the Immigration and Refugee Protection Act (IRPA) was relatively new and many people were not up to date with the new laws and regulations. We would regularly speak with folks who had heard about old programs. My job at that time, as it is today, is to guide people through the system and to make sure they are relying on accurate information.

One of the big changes after IRPA came into force was that siblings were no longer allowed to sponsor. Before IRPA, you could easily sponsor your brother or sister. The definition of “family member” changed with the new legislation and there was significant misinformation in the public. I spoke with many (many!) people who wanted to sponsor a sibling. IRPA did not make it impossible; however, it was significantly limited under the new laws. We can still help siblings with sponsorship applications under very limited circumstances. If they are a “last living relative”, for example, IRPA made it possible.

In 2023, IRCC is opening up the sponsorship application for brothers and sisters – for Ukrainian citizens. In a program that was just announced, Ukrainians can apply for Permanent Resident status if they have the following conditions:

Category 1: A family member of a Canadian citizen or permanent resident in Canada

You can apply to immigrate under this policy if you meet the following conditions.

You must :

  • be a Ukrainian national
  • be a family member of a Canadian citizen or permanent resident including their:
    • spouse or common-law partner
    • child (regardless of age)
    • grandchild
    • parent
    • grandparent, or
    • sibling (or half-sibling)
  • be in Canada when:
    • you submit your application
    • you’re granted permanent residence
  • have valid temporary resident status in Canada, or have applied to restore your status if it has been expired for less than 90 days
  • hold a passport or travel document, or provide supporting identity documents if you don’t hold one
  • provide a signed statutory declaration form (IMM 0191) from your family member in Canada explaining your relationship to them, and
  • be admissible to Canada

The Canadian citizen or permanent resident (your family member) must:

  • currently live in Canada
  • be at least 18 years of age or older
  • not have been granted permanent residence themselves under this policy

Category 2 – Spouse or common-law partner of a Ukrainian national who has family in Canada

You can apply to immigrate under this policy if you meet the following conditions.

You must be the spouse or common-law partner of a Ukrainian national.

Your spouse or partner must:

  • be unable to leave Ukraine, be missing, have passed away, or have presumed to have passed way
  • be the family member of a Canadian citizen or permanent resident including their:
    • child (regardless of age)
    • grandchild
    • parent
    • grandparent, or
    • sibling (or half-sibling)

You must:

  • be in Canada when:
    • you submit your application
    • you’re granted permanent residence
  • not have remarried or be in a common-law relationship with another person since leaving Ukraine
  • have valid temporary resident status in Canada, or have applied to restore your status if it has been expired for less than 90 days
  • hold a passport or travel document, or provide supporting identity documents if you don’t hold one
  • provide a signed statutory declaration form (IMM 0191) from your spouse or partner’s family member in Canada explaining your relationship to them, and
  • be admissible to Canada

We meet with many Ukrainians who are trying to get PR status. If you qualify for the above program, ENGLISH is not a requirement.

If you meet the criteria above, we would like to help you bring your family members to Canada!

Presentation: Wilfred Laurier University

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Professor Stacy Wilson Forsberg has invited Alastair Clarke to give a presentation on immigration and refugee law for her course at the Wilfred Laurier University on 19 OCT 2023. This presentation/ lecture will be based on recent changes to Canadian immigration and refugee law. As you know, our laws are constantly in flux.

Mr Clarke has given lectures to students at the University of Manitoba, Seneca College, the University of Winnipeg (Global College), BCIT, Toronto Metropolitan University (formerly Ryerson) and at national and international conferences. He has also given testimony to Parliament at the CIMM (Parliamentary Standing Committee on Citizenship and Immigration). As a former junior high school teacher, Mr Clarke loves engaging with students.

If you are a student at Waterloo, Mr Clarke looks forward to connecting with you and getting your feedback.

Mr Clarke will be presenting on the STCA, changes to border crossings, Federal Court of Canada caselaw and other topics related to immigration and refugee law.

Refugee Rights Day

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Today marks a celebration of refugees. We celebrate all the work done by refugee lawyers around the world who help their clients find safety. We celebrate all the humanitarian efforts by settlement workers, community legal workers and government employees who provide significant support to refugees. We celebrate all the contributions, including cultural, emotional and financial, of refugees. We celebrate the Geneva Conventions of 1949, the foundation of our laws to protect refugees. Finally, we celebrate our Court system, including the Supreme Court of Canada which ruled on 4 APRIL 1985 that refugees are legally entitled to constitutional protection and a hearing to have their claims heard.

At CIL, we have helped 1000s of refugees over the years. Before Alastair Clarke founded CIL, he had been representing refugees in Manitoba and Ontario. He has published his background, including his TEDx talk to show the reasons he passionately represents his clients. As he described in this space, he assisted refugees while working as a Summer Student while in law school at the Centre for Spanish Speaking Peoples’ legal aid clinic in Toronto in 2006. 

In this space, we have highlighted many businesses. Some of those businesses were started or owned by refugee claimants. We recognize the extraordinary cultural contributions by refugee claimants. These families bring their language and cultural from their home countries. In Winnipeg. we celebrate our diverse cultures at Folklorama every year. If you are in Winnipeg or you are planning to come, I would highly encourage you to attend Folklorama and experience different foods, events and the multiculturalism of our communities.

Amendments to STCA

As noted by Amnesty International, we recognize the erosion of refugee protection with the expansion of the Safe Third Country Agreement. Mr Clarke has been calling on the Canadian government to suspend or withdraw the STCA since 2017 and he has given many interviews on the hardship and injury which is the result of this unconstitutional legislation.

Mr Clarke’s predictions have been proven correct. Recent deaths at the bord

er highlight the tragedy and danger of the terms of this Agreement.

Please urge the Canadian government to end the STCA and send a message to the Minister of IRCC through the Amnesty International website. Here is sample language for your message:

Under the Safe Third Country Agreement (SCTA), many refugees are forcibly returned to the US, where they are at risk of arbitrary detention and possible return to their country of origin where they may face persecution and death. . Call on Canada to be a leader for #RefugeeRights, by rescinding the SCTA. TAKE ACTION >>

Supreme Court of Canada Decision Pending

In addition to all the issues noted above and in recent interviews, CIL also notes the Government of Canada has made these recent announcements while our Supreme Court is in the process of making its decision to determine whether the STCA is in violation of the Charter. In my view, Justice MacDo nald correctly decided the STCA is in violation of sections 7 and 15 of the Charter.

This decision was reversed by the Federal Court of Appeal and we have outlined our reasons explaining the legal issues with the FCA decision. 

At this point, we urge the Government of Canada and IRCC to reverse the amendments to the STCA and await the decision from the SCC.

 

Refugee Lab: 2021 Refusal Rates

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Professor Rehaag and his team at the Refugee Law Laboratory have published the refusal and approval rates from the IRB, based on decisions in 2021. This research and data is a huge benefit for both individual refugee claimants and representatives. This data represents decisions across Canada and it breaks down decisions by individual RPD Members (judges) as well as by countries of origin. We have used this data for years to gauge how adjudicators compare and to see how approval rates may change from year to year and from country to country.

The Refugee Law Laboratory is a huge project. I had dinner with Sean Rehaag when he came to Winnipeg to discuss his research. As an aside, he is a great guy and he is extremely passionate about transparency and consistency in the legal system.

Prof Rehaag notes:

As usual, there is lots of variation in recognition rates. At the RPD, the recognition rate range is from 0% (D Mungovan) to 100% (K. Bugby, D. Coyne & H Savageincluding). And at the RAD, the appeal allowal rate range is from 1.1% (L. Mokhtar) to 71.7% (J. Corry).

To be clear, a 0% recognition rate at the RPD means the decision maker refused every case heard by that person. Every refugee claimant who appeared before RPD Member Mungavan was denied. We do not want to single out any particular adjudicator; however, this data paints a compelling picture and raises serious questions. RPD Member Mungavan heard more than 30 refugee claims from countries including Iran, Nigeria and Colombia. He refused every claim.

In contrast, the refugee claimants who were lucky (and, I hesitate to use “luck” as it relates to such a serious matter; however, in this case, the selection of the RPB Member with the claimant is pure luck, as far as I am aware) may have had their claims decided by a different RPD and they would have had a much better chance as a positive decision. Based on the data, that is a fact.

In the future, Prof Rehaag and his team will be making this information easily searchable and available:

Also, I am excited to report that my Refugee Law Lab will soon be launching a web portal to share this sort of data in a more accessible format with better visualizations – and the portal will have constantly updated Federal Court data as well. If you’d like to see what the RPD portion of the portal currently looks like (and if you have any feedback for us), you can check out a video here: https://www.youtube.com/watch?v=xNF4Sv8qlzw

As you can see from above, this future project/ portal is designed for the public, not only lawyers and trained legal professionals. The YouTube video provides a guide to how we will be able to find decisions from different countries of origin and from different RPD Members.

We look forward to using the web portal at the Refugee Law Lab as soon as it becomes available.

National Day for Truth and Reconciliation

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To mark this important date, Clarke Immigration Law will be closed on 30 SEPT 2022. All staff will be marking the date in their own way.

We would encourage you to wear an orange shirt as a symbol of the stripping away of “culture, freedom and self-esteem experienced by Indigenous children. We would also encourage you to participate in the 1 hour national commemorative gathering.”

CIL is committed to be part of the solution. We were honoured to participate in the Manitoba Human Rights Torch of Dignity Event in NOV 2021. You can see the video where each member of our staff held and passed the torch for Manitobans for Human Rights.

In addition, Alastair Clarke has volunteered as a member of the Board of Directors with the John Howard Society of Manitoba for many years, an organization that is committed to providing services for individuals in the correctional system. Indigenous men are disproportionately affected by our justice system and we are committed to address the system discrimination.

Finally, we have been offering assistance to Indigenous individuals who may apply to change their names to recognize their ancestral heritage. Our services for this application are pro bono – this means that we do not charge for these services. Completely free.

As you may know, our office is located next to the Hudson Bay building in downtown Winnipeg. We are greatly looking forward to supporting the Southern Chiefs’ plan to develop the building to become a hub of housing, business and governance for Manitoba First Nations. We look forward to helping our future neighbours!

What are you doing to mark the National Day for Truth and Reconciliation 2022? If you are active in the community and there is an event or a program that needs help, please let us know. We are always looking to improve our services and get involved in our communities.

 

MB Torch of Dignity Event

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Torch of Dignity

Clarke Immigration Law had the privilege of participating in the recent Manitoba Torch of Dignity Event. Alastair Clarke was honoured to be invited as a Speaker & Presentor to this event, based on his advocacy on behalf of Manitobans. Alastair has been fighting for his clients for many years, including cases based on human rights violations and cases based on Charter rights. Here is a copy of Alastair’s speech, which is available online:

Thank you for the invitation to speak with you today. I am prerecording my talk and I expect that we started this conference with acknowledge to the First Nations people. I am speaking to you at Clarke Immigration Law,  located on the traditional lands of the Anishinabe, Cree, Oji-Cree, Dene, and Dakota, and is the Birthplace of the Métis Nation and the Heart of the Métis Nation Homeland. And this acknowledgment is not perfunctory. As a conference focused on human rights, we need to recognize the human rights that have been violated in Canada. For the first National Day for Truth and Reconciliation, Clarke Immigration Law announced pro bono services for Indigenous people. I believe it is incumbent on all of us to be part of the solution.

OK – today I have been asked to speak on Article 14 of the Universal Declarations of Human Rights. Namely, the right to seek and enjoy asylum from persecution. The Declarations were proclaimed by the UN General Assembly in 1948 in the shadow of WWII. Subsequently, member states participated in four Geneva Conventions that led to the 1951 Refugee Convention. Immigration lawyers regularly refer to the 1951 Geneva Convention as the foundation for modern refugee laws. It is important to note that Canada did not sign the Convention until 1969 – more than 18 years after it was adopted by the UN.

In Canadian law, the principles have been ratified in sections 96 and 97 of the Immigration and Refugee Protection Act. For any foreign national in Canada, they may be granted refugee status or protected person status if they fall within sections 96 or 97. These sections are the backbone of the refugee determination system and the particular language of these sections has been heavily litigated.

Torch of Dignity

Torch of Dignity

As a practitioner, my job is to help my clients navigate the Canadian immigration system. I have represented thousands of clients from around the world on all kinds of immigration applications. Today I want to share 3 cases with you. These are real cases of real people. The point of the first case is to show how Canadian laws may fail to protect human rights. The second is to how the Canadian system has adapted to help people who have suffered human rights violations. The third case is a challenging case that I am currently handling. The point of this third case is to highlight some of the issues refugee lawyers have to deal with in 2021. Finally, I want to propose an expansion of refugee law and I want all of you to get involved in helping refugees who need our help.

The first story starts in Burundi. The former president of Burundi and his regime committed many human rights violations and the International Criminal Court has been investigating human rights abuses since 2017. I got involved in 2018 when I got a call from a Burundi journalist at the border. She entered the United States on a visitor visa and she was attempting to file a claim for refugee protection in Canada. Her sister-in-law lives in Winnipeg and they are very close. Unfortunately, when she got to the Canadian border, the officers could not allow her refugee claim to be referred to the tribunal unless she passed the legal test in the Safe Third Country Agreement. In this case, the Agreement mandated that this Burundi journalist file her refugee claim in the USA unless she fell under one of the exceptions. The family thought that having a family member in Canada would grant her access to the Canadian refugee determination system – which is far more humane than the American system. Alas, her relationship with her sister-in-law, a relationship by marriage not by blood, was not sufficient and she was denied entry. On a side note, her children were allowed to enter as they have a blood connection with their Canadian aunt. The journalist made the heart-wrenching decision to give her children to her sister-in-law and to stay at a shelter near the border in the USA. That is when I got involved. We filed an Application for Judicial Review to Federal Court and negotiated with the Department of Justice. It was not easy but the journalist is now in Canada with her children and they are all permanent residents.

I have spoken on the so-called Safe Third Country Agreement at national conferences for immigration lawyers and in many news interviews. In my view, this Agreement allows Canada to shirk its human rights obligations. In 2020, Federal Court Justice McDonald determined the Safe Third Country Agreement is unconstitutional and fails to protect human rights. I would encourage you to read this well reasoned decision that is based on very strong evidence. This decision, however, was overturned by the Federal Court of Appeal earlier this year. I disagree with this recent decision and more work needs to be done.

The second case refers to the Singh decision by the Supreme Court of Canada, rendered on April 4th, 1985. The reason I mention the date is because April 4th is Refugee Rights Day and that date was chosen based on the Singh decision. Prior to the Singh decision, refugee claimants in Canada did not have the right to a hearing. They submitted a written claim only. No testimony. No witnesses. There were many lawyers involved as advocates in this decision but I want to mention Barb Jackman. She is one of the reasons I fight for my clients. She was my professor at Queen’s Law and she would talk to me about her cases during breaks. Barb was a young lawyer when she argued the Singh case at the Supreme Court and she made strong Charter arguments to fight for change. Indeed, the Court agreed and the Immigration and Refugee Board was created. I have been giving guest lectures to students at the University of Winnipeg for many years and we focus on the Singh decision. This decision gives me hope for positive change and it shows the importance of both individual effort and the judicial system to be part of the solution.

My last story involves a member of the Falun Gong from China who is currently fighting to stay in Canada. Human rights abuses of members of Falun Gong are well documented. My client was tortured and she is emotionally exhausted. She fled China without any documents and she has been trying to have evidence sent to her. Alas, the Chinese government’s draconian surveillance system has cut her off from her relatives and friends. Her WhatsApp account was canceled. Her friend’s account has been suspended. She is now afraid that if she continues with her claim, her family members in China will be punished. The reason that I bring up this case is the highlight the challenges of fighting human rights abuses in 2021. While we have technology that allows me to present to you, wherever you are, modern technology also allows governments to hide human rights violations.

Finally, I want to end on a call to action. Currently, we are facing possible extinction if we do not confront climate change. The 1951 Geneva Convention and, subsequently, sections 96 and 97 of IRPA did not consider people being displaced from environmental disasters. These people are currently not covered by our laws. I have been working on this issue since 2010 when I edited an article by Peter Showler entitled The Plight of the Eco-Refugee. Climate change is an existential threat and we need to recognize this risk within the context of refugee law.

Thank you and I look forward to further discussion on any of these points. I hope I have helped spark change.

To watch the event, click here and you can watch the Q&A with all the presenters. 

 

Success: H&C

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As part of our series to share success stories, we are thrilled to share this story of a Mexican family who were granted Approval In Principle (AIP) on an Application for Permanent Resident Status based on Humanitarian and Compassionate Considerations (H&C). As you may be aware, the H&C application currently has an approval rate of approximately 50% only. This application requires significant work and research. In this case, we worked with numerous community members, academics, and legal scholars to put together a strong application based on their humanitarian circumstances. humanitarian

A brief background. A family of (5) five Mexican nationals with strong family and historical connections to southern Manitoba came to our office in early 2018. This Mennonite family were all born in Mexico. Their parents (deceased) were members of Old Colony Mennonites who were born in Manitoba. Based on issues related to education, they left Canada to settle in Mexico and Paraguay. They came to us to help them rekindle their ties with the Mennonite community in the Winkler area. As they have no formal education, they did not qualify for the RNIP, MPNP or any other skilled worker category even though these are highly accomplished applicants.

After only 11 months of processing, IRCC gave approval in principle (AIP) to this H&C application based on the strong humanitarian arguments. We are very pleased with the processing time of this application – faster than average processing times.

This family has maintained their temporary status in Canada throughout the H&C process and they are currently working with valid Work Permits. We attribute the success of this application based on the strong support of the Mennonite community and strong legal research. Similar to another humanitarian application that was approved, we prepared +400 pages of documents for this H&C application.

This family is naturally delighted their application has passed the AIP (first-stage) approval and we look forward to this family becoming Permanent Residents of Canada. To date, Clarke Immigration Law has never had an H&C application refused.

Refugee Law & Climate Change

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Kiribati is a small island nation that may soon be gone. It is forecasted to be the first nation to become a victim of climate change and all of its citizens will be forced, involuntarily, to find another home. In an unprecedented decision, the UN Human Rights Commission ruled that a citizen of Kiribati, Mr. Ioane Teitioto, shall not be deported by New Zealand due to threats related to climate change. This decision is the first in a sea of change, I believe, that will lead to a significant expansion of Canadian refugee law.

A Brief History of the “Eco-Refugee”

The inevitable destruction of the nation of Kiribati is a predictable consequence of climate change and it signals a looming global crisis. This crisis has been on the horizon for decades. Back in 2010, I edited an article by Professor Peter Shower, “The Plight of the Eco-Refugee” for the Briefly Speaking, published by the Ontario Bar Association. As noted by Peter:

It is generally accepted that the Convention definition of a refugee does not protect the environmentally displaced. The Convention does not apply to internally displaced migrants and the harm feared must be due to a Convention ground: race, religion, nationality, political opinion or membership in a particular social group. This element of the definition eliminates natural catastrophes.

At the time, Haiti suffered after a divesting earthquake in 2010. The coordinated international response, largely based on the network from 2004 when a tsunami devastated parts of Asia, came to the aid of many Haitians and even 10 years later, much of Haiti has not recovered. It is very clear the trend is towards increasing severity and frequency of these environmental catastrophes.

I agreed with Peter in 2010; alas, as far as I am aware, the article and its call for reform fell on deaf ears.

One Non-Binding Decision

Indeed, very little has changed in the past 10 years … until this recent ruling by the 18 members of the UN Human Rights Commission. This decision is, of course, non-binding on Canadian adjudicators or any other signatory countries around the world. In my view, however, the decision is persuasive and comprehensive in its analysis.

As noted by Melanie Gallant, head of communications for UNHCR Canada:

In its decision, the UN Human Rights Committee has made clear that returning a person to a country where they face a risk to their life, or a risk of serious mistreatment, as a result of climate change-related environmental degradation would violate the International Covenant on Civil and Political Rights.

UNHCR is calling this decision a “wake-up call” to signatory countries, including Canada. This is not a decision that can be simply cast aside. It may have been true back in 2010 when our issue of Briefly Speaking focused on environmental issues barely made any ripples or in 2015 when Mr Teitioto’s initial claim for refugee protection was denied by New Zealand. Indeed, I believe 2020, or possibly this decade, will be the time for action and the claims of eco-refugees may finally be accepted as “valid” in law. In the UNHCR statement urging a “wake-up call”:

UNHCR has consistently stressed that people fleeing adverse effects of climate change and the impact of sudden and slow-onset disasters may have valid claims for refugee status under the 1951 Refugee Convention or regional refugee frameworks. This includes but is not limited to situations where climate change and disasters are intertwined with conflict and violence.

Indeed, as aptly noted by UNHCR, refugee claims that have ties to climate change or environmental disasters may be accepted when the claims are linked with civil unrest, political violence or conflict that may be argued separately from the risks directly related to environmental disaster.

Canadian Context

The question becomes how claimants from nations like Kiribati who come to Canada seeking protection based on the effects of climate change will be handled by the Immigration and Refugee Board – Refugee Protection Division (IRB-RPD). Under Canadian law, a claimant may be conferred with status pursuant to either section 96 or section 97 of IRPA. Briefly, section 96 includes the language from the Convention as outlined by the enumerated categories listed by Peter above. Section 97 confers refugee stats to people in need of protection and RPD Members may grant status under either section.

Climate Change

Generally speaking, RPD Members are sympathetic to refugee claimants in Canada and I have seen dozens, if not hundreds, of claimants receive positive decisions here subsequent to refusals from Immigration judges in the USA. I have given numerous presentations on these issues. We continue to live in a world where asylum claimants in the USA are denied basic rights and they are prevented from presenting their evidence or from having access to counsel.

In his article, Peter Showler calls for action on the part of the United Nations:

The more promising approach is a comprehensive set of guiding principles comparable to the U.N.’s Guiding Principles on Internal Displacement. […] Some will criticize the proposals for being non-binding but that is the only means by which nations will meaningfully engage in long-term preparatory discussions on protection.

The above quote is from 2010, as far as I am aware, no such long-term discussions have taken place and the situation has become increasingly dire.

Bill Frelick, Refugee Rights Director at Human Rights Watch, is calling for an expansion of the definition of refugee to include claims based on risks from climate change:

This means not only that our common understanding of what it means to be a refugee needs to change, but also that the 173 countries that are party to the International Covenant on Civil and Political Rights should ensure their asylum standards and procedures are adapted to protect all who face existential threats if returned to home countries that have become unliveable.

Ideally, Parliament would act to expand the definitions of a refugee in Canada; however, that may not be necessary.

“Membership in a Particular Social Group”

A potential solution may be to find nexus between those individuals who are fleeing environmental destruction and the enumerated group of “membership in a particular social group” per section 96 of IRPA. This category allows for interpretation and may allow for sufficient flexibility from adjudicators to confer refugee status on claimants without changes to statute.

Currently, this category is being interpreted differently by signatory governments. For example, in Canada, women who are the victims of domestic violence have been accepted as part of this category; however, in the USA, those same women have been denied claims on the same evidence. The Tamil passengers of the MV Sun Sea were first conferred refugee status by the RPD on this basis and then, on appeal, that decision was reversed by Justice Noel of the Federal Court of Canada.

It is clear that the “membership in a particular social group” may be interpreted differently by decision-makers. The question will be whether eco-refugees may fit within this definition or whether it will take an act of Parliament to amend our laws. The only certainty of this situation is that climate change is going to increasingly affect our lives. The people from Kiribati are going to need another home once their island nation is completely uninhabitable. At this point, fewer than a million souls are at immediate risk of seeking eco-refugee status. As another environmental disaster looms on the horizon, we urgently need a robust refugee system that acknowledges the current climate change crisis.

Note: This post has also been published on Slaw.ca where Alastair Clarke is a Contributor.