Success: Tribunal appeal

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

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.

refugees

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.