Your Case and the Important Legal Issues

The Member of the IRB-RPD must study the facts in your case and the situation in your country to decide if you need Canada’s protection.  

There are many legal issues that may be discussed at your refugee hearing.  Some of the common legal issues that may be addressed at your refugee hearing are: 

  • Identity
  • Credibility
  • Subjective Fear
  • Generalized Risk
  • State Protection  
  • Internal Flight Alternative  
  • Legal Residence in Another Country  
  • Criminality
  • Delay in Claim.

Identity 

You must show that you are who you say you are. This includes your identity as a citizen or resident in your country of birth or another country. It may also include your affiliation with a particular religion or ethnicity, your professional, political, or union membership, your sexual orientation, or your membership in another kind of social group. If you cannot obtain documents confirming an aspect of your identity that is relevant to your claim, you will have to give an explanation at your hearing. 

 Examples of evidence
  • To prove you are a citizen of your country:
    • Passport
    • National identity card
    • Military service
    • Marriage certificate
    • School transcripts
    • Witnesses from your country who know you well 
  • To prove your religious affiliation, if relevant: 
    • Baptismal certificate
    • Letter from your religious leader 
  • To prove your political or professional affiliation, if relevant: 
    • Membership card
    • Letter from organization
    • Transcripts proving professional training
    • Diplomas 
  • To prove your sexual orientation, if relevant: 
    • Letter from a community group, partner, or family member. These witnesses should give as many details as they can to show how they know you are part of the LGBTQ community.

Credibility

You must show that you are telling the truth and whether your evidence is accurate and reliable. To decide if you are credible, the information on your BOC Form and written narrative, the evidence you submit, the oral testimony you give at your hearing, news stories and human rights reports, and the testimony of other witnesses will be compared for consistency. If there are significant contradictions that you cannot explain, the Member may decide that you are not credible and this may negatively affect any future immigration applications you make in Canada. 

Examples of evidence
  • Country reports and news articles showing human rights abuses that are similar to, or confirm, those in your claim 
  • Medical / hospital records or receipts 
  • Police reports 
  • Photographs showing injuries 
  • Sworn statements from witnesses 
  • A letter from your doctor in Canada confirming scars or injuries 
  • Screenshots from social media.
Tips for credibility during your hearing
  • Submit documents to confirm that specific details of your story are true
  • Be careful not to exaggerate details of your claim
  • Do not answer a question that you do not understand
  • It is perfectly fine to ask the Member to repeat or rephrase the question
  • Do not guess. Be truthful. Answer the questions in long, full sentences to make sure you are not misunderstood
  • Choose your witnesses carefully and insist that they tell the truth. Explain to them that the Member will decide whether they are credible, based on whether there are contradictions between their evidence and yours.

Subjective Fear

You must show that you have a genuine fear of persecution in your country. To decide whether your fear is genuine, the Member may ask you:

  • Did you return to your country where you were persecuted after you left?

(Legal Issue: Re-availment)

  • Did you pass through another safe country (for example, the USA) on your way to Canada, but not make a refugee claim there?

(Legal Issue: Failure to Claim Elsewhere)

  • After you experienced persecution in your country did you stay there even though you had the opportunity to leave sooner? 

(Legal Issue: Delay in Departure)

  • Did you wait for a while before making a refugee claim after you arrived in Canada?

(Legal Issue: Delay in Claiming)

If your answer to any of these questions is “Yes,” you will likely be asked to explain the reasons at your hearing. Gather evidence to support your explanation and think about how you will explain the decisions you made.

Be prepared to explain why you did not leave right away or why you did not claim refugee protection sooner. Did you hope the situation in your country would change? What were the challenges in leaving your country? Why didn’t you make your claim as soon as you arrived in Canada?

Examples of evidence
  • Police reports filed
  • Psychological or medical reports indicating any trauma you may have suffered
  • Evidence of your efforts to escape danger such as tickets, receipts, travel documents
  • Witness testimony to efforts you took to protect yourself from threats you faced
  • News sources that you relied on for information about the danger you faced
  • Information you relied on about making an asylum claim in another country you passed through
  • Documentation showing why you could not leave your country sooner, if you were delayed in leaving
  • Documentation of barriers to filing a claim in Canada quickly after your arrival.

Generalized Risk

You must show that the risk you face is personal and not the same general risk that everyone else in your country faces. This means that if you come from a country where there is a lot of violence, you will need to show why you, personally, are at risk. If you can, identify who (or what group) has targeted you, how you know you have been targeted and why you have been targeted.

Examples of evidence
  • Any notes, letters, text or recordings of voice messages you have received that contain threats of violence against you 
  • Sworn statements from friends or other witnesses confirming that you, or others in a similar situation, have been the victims of violence 
  • Photographs showing injuries or damage, medical records confirming treatment in your country
  • Police reports from your country 
  • Social media or video evidence with transcript.

State Protection

 You must show that your government cannot or will not protect you. The IRB-RPD assumes that your government can protect you unless you provide evidence that convinces them otherwise. 

If you tried to get protection from authorities in your country but did not receive it: 

  • Explain exactly what you did and how the authorities responded 
  • Try to get documents showing that you sought protection 
  • Try to find reports from your country showing that the authorities cannot or will not protect people in your situation.

If you did NOT seek protection from authorities in your country: 

  • You must explain why and provide supporting documents to show that it would have been unreasonable for you to do so 
  • You can give examples of what happened to other people who tried to go to the police or to other authorities.
Examples of evidence
  • Country reports showing lack of police protection and/or corruption 
  • Reliable news reports showing lack of police protection and/or corruption
  • Reports you made to the police 
  • Sworn statements from people who are in a situation similar to yours and whom the authorities did not protect. 

Internal Flight Alternative (IFA)

You must show that it is not safe for you to live in another part of your country that you are fleeing.

If this issue is addressed at your hearing, the IRB-RPD will tell you the specific region where they believe you could live safely. You must provide evidence that: 

  • You cannot live safely in this other region, or 
  • It would be unreasonable for you to try to live in this other region (given your age, gender, or particular circumstance), or 
  • There is no way to get to that region, because it is inaccessible due to war, natural disaster, or another reason. 
Examples of evidence
  • Documents showing that you tried to get away from the problem by moving to another part of your country before you left
  • Reports that show the problem you face exists throughout the whole country. For example, the people who want to harm you operate all over the country, or the discrimination you fear exists in all parts of your country 
  • Reports about your country that show why someone like you would have difficulty living in another part of your country. For example, reports that describe the culture in your country and show why it would be hard for someone like you to move to another region. You may also show that the area has been affected by civil war or natural disaster or other serious problems.
  • Letters from friends or relatives who helped you hide in different cities or regions of your country.

Criminality

If you have participated in organized crime or if you are found to have been convicted of a serious crime inside or outside of Canada that is punishable in Canada by at least 10 years in prison (regardless of the sentence actually received) you are not eligible for Canada’s protection. 

If you do not agree with charges of participation in organized crime or serious criminality in your case, get evidence to prove your innocence or your conviction record.

Examples of evidence
  • Court records to document any convictions you have
  • Police records to demonstrate the accusations and facts as initially reported to the police
  • Witness affidavits regarding alleged participation in criminal organizations.