Archive for category: RAD

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Success: Mennonite Family

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Manitoba has a strong vibrant Mennonite community. The history of Mennonites in Canada is complex and there have been points where the community has divided. CIL has represented many Mennonites over the years, including complex Citizenship applications, H&C applications and refugee claims. Today, I will share a success story from a family who fled Paraguay and sought protection in Canada, based on the Geneva Convention or 1951. Many years ago, this family’s ancestors lived in Manitoba and left Canada to find a better life in Paraguay. They lived in a Mennonite colony (“Old Colony”) in Paraguay for many years. Based on a series of events, involved various members of the Old Colony community, gangs in Paraguay and the drug trafficking cartels, our clients had no other option than to come to Canada to claim refugee status.

Here are CIL, we are not historians or experts in the historical context. For these issues, we rely on experts, including Royden Loewen (“Roy”), a retired Canadian History Professor and Chair in Mennonite Studies at the University of Winnipeg. He also happens to be a contact of Alastair Clarke. Roy has provided invaluable information and context to these cases so the IRB Member or IRCC Officer can understand the important background information.

CIL represented this Mennonite family from Paraguay through the refugee claim process and assisted them with witness testimony and oral evidence at the RPD. Given the volume of evidence, the RPD required multiple hearings to ensure all the witnesses and claimants were able to fully share their story.

The team at CIL worked with this Mennonite family from Paraguay for more than 1 year to make sure they were prepared. We provided more than 300 pages of documents and evidence to support their claim. In the end, the RPD accepted that they are Convention refugees per A96 of IRPA and they are in need of protection. They are now safe in Canada and they are on track to becoming Permanent Residents.

Congratulations to this Mennonite family!

Refugee Claimants Get One (1) Chance

Most refugee claimants who go through the Canadian refugee determination process only get 1 chance at the RPD. If they are refused, they can appeal to the Refugee Appeal Division (RAD) and, in a few cases, the RAD may send the claim back to the RPD for redetermination. This is very rare. 

When a failed refugee claimant comes to CIL and shares a horror story, it can be extremely frustrating to hear. In some cases, individuals will describe how their previous representative did not prepare them. They talk about how their previous representative did not explain how to give good testimony to the RPD. They describe how their previous representative did not listen. They talk about how their previous representative did not spend enough time to review their claim. It is extremely difficult to hear these stories, of course, and CIL has limited powers to fix the problem at this point.

We have helped failed refugee claimants through the RAD process and we have had many RPD decision overturned; however, these cases are difficult and they require a lot of work.

Do Things Properly

If you read this space, you will know that we made the decision to stop accepting Legal Aid Manitoba certificates. As we published at that time, and as reported by CBC News, Legal Aid Manitoba only paid lawyers for 13.1 hours of work.

For this claim, the team at CIL spent more than 30 hours on this file. We needed more than 30 hours to perform the necessary legal research, review all the issues, respond to the Minister’s concerns, prepare the claimants and witnesses, etc, etc, etc.

In my opinion, if this family had found a lawyer through Legal Aid, there is high chance their claim would have been refused and they would be subject to a Removal Order. We can never know, of course, what might have happened.

Our philosophy: do things properly. If a claim takes 30 hours to ensure it is done properly, then take the 30 hours to do it.

CityNews: Stop Deportation

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Canada Border Services Agency (CBSA) is in the process of removing a Pakistani family who have been living in Canada for 3 years. Please note: CIL does not represent this family and we are not involved in any legal matters. We have been advised they are represented by counsel who, unfortunately, has not been able to stop the deportation. We were contacted by multiple news agencies to give legal advice on immigration law and how to stop deportation.

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As noted by the segment on CityNews:

A family of 6 living in Winnipeg is desperate and worried about being deported. After creating a life here for the past 3 years, they are being forced to leave because all their appeals have been denied. @CityBreanna can tell you the story.

We have been advised this family is still in Canada. We hope their counsel is able to stop deportation. This is a complex matter. We have been advised they had their refugee claim heard at the IRB-RPD and the Adjudicator refused their claim. They appealed to the IRB-RAD and the Adjudicator refused their appeal. In addition, they appealed to Federal Court for judicial review and this ALJR was dismissed. At this point, CBSA is pursuing deportation.

This story has also been covered by CTV News: ‘I am looking out for their lives’: A Winnipeg family is seeking help as they face deportation before the end of the year

As stated in the CTV article:

Alastair Clarke is an immigration lawyer with Clarke Immigration Law. He hasn’t represented the family during this process, but said there can be several reasons why an asylum application is denied.

“The adjudicators at the tribunal obviously take the claims very seriously. They ask very serious and often difficult questions, in order to see if the claimant is telling the truth, to see whether or not the claimant meets the definitions under Canadian law,” said Clarke.

Clearly, this family has strong connections to Canada and we wish them all the best. Hopefully their lawyer is able to stop deportation.

Success: Tribunal appeal

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Tribunal appeals are entirely dependent on the facts and the decison under review. We have handled appeals where the Officer or Decision-Maker has clearly made a mistake in law and/or fact. In some cases, we need to fix a mistake made by the tribunal. These cases still require significant work to lay out all the issues in a clear and concise manner for the appeal to succeed; however, these have a good chance at success. Other cases are more complex and when we submit our package for the appeal, we cross our fingers and hope that our arguments are strong enough for a positive decision. This case fell in the latter category and we are very pleased to report our tribunal appeal was granted.tribunal appeal

Tribunal Appeal to the RAD

The RAD deals with decisions made by the RPD. In this case, we represented this family at the RPD and their claim for protection was refused. Based on the documentation and testimony at the tribunal, this was a complex case; however, in my view, they met the definition per section 96 or 97 of IRPA. The RPD Member disagreed and refused their claim.

We submitted significant legal arguments to the RAD and we were successful upon appeal. In the decision, the RAD Member Jennifer Moore clearly agreed with our arguments:

[15] The Appellants argue that the RPD misinterpreted the evidence about adoption in Igbo culture, and that it failed to sufficiently consider the actual risk faced by the Appellants based on their particular circumstances. I agree and find that the suggestion made by the RPD, that the Appellants could simply adopt a child from one of their siblings to be confusing and is not supported by any of the evidence. Even if a sibling was prepared to supply a child, the Appellants provided evidence that adopted children are not considered the same as biological children in Igbo culture.

The decision by the RAD is extremely detailed and analyses the country condition evidence as well as the documents and testimony for this particular case.

Alastair Clarke has appeared before the tribunal hundreds of times over the past 13 years. He has also given numerous training sessions for lawyers and advocates. Of note, the IRB has made requests for Mr. Clarke to give advice to lawyers in Manitoba to raise the level of representation in our province. He has also presented alongside representatives from UNHCR to give training to lawyers. Tribunal appeal work is not easy; however, positive results are extremely rewarding.

When we told our clients of the RAD decision, they screamed with joy. We are happy to help.

 

Success: Refugees In Canada

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Good end to a tough year. We just got this positive decision from the IRB-RPD, granting refugee status to our clients from Somalia. I do not normally publish RPD decisions on this site as the hearings are “private” and we need to maintain confidentiality. We must make sure that we redact all the personal information to protect our clients. We did share a RAD appeal in 2020 on another important case. We have represented hundreds, if not thousands, of refugee claimants over the past 13 years and this work is vital. Our work is to save lives.

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I will say that this case was quite different and very challenging. To be honest, this was a tough case and I was not sure of the decision even after the RPD hearing. This Somali family came to us after a previous refusal by a different RPD Member. At that time, they had a bad lawyer who did not give them enough support and he did not properly support or prepare the claimant for the hearing. She was not able to provide sound testimony to the tribunal. She made mistakes in her answers and she did not listen to the RPD Member’s questions. There were many things the representative could have done to help but he lacks the experience and understanding. The RPD Member refused their refugee claim and the decision was scathing.

This family came to us to do the RAD appeal. Thank you to Welcome Place for giving her a good referral. We take referrals very seriously and it is comforting to know that we have earned the trust of the staff at Welcome Place (Manitoba Interfaith Immigration Council). We were able to show the problems of the previous representative and we could show the RPD Member was not able to make a decision based on all the evidence. We won the appeal to the RAD and we were awarded a new hearing at the RPD.

If you are aware of the system, there is no guarantee that a positive decision from the RAD will guarantee a positive decision from the RPD. After 2 years, this family had already been through a lot. We prepped them for the appeal with the help of their community and interpreters who donated their time and skills. We were able to explain to them that they must listen to the questions at the RPD, answer the questions with clear, detailed explanations. If they do not an answer, they can simply say, “I don’t know”. If they are asked about certain events, they must only talk about what they know and refrain from guessing. It does not help when claimants give testimony on topics they do not know.

After 2 years of work, we got this positive decision. We helped to save more lives.