IMMIGRATION: Avoid delay in making refugee claim

IMMIGRATION: Avoid delay in making refugee claim

Poor Deca Lesmond.

In 2001, she came to Canada with her daughter and the child’s father.

While in Canada Deca’s partner was abusive with her and in 2003 he was arrested and placed on a protection order. In March 2006 he was deported to St. Lucia all-the-while blaming Deca for his misfortunes and threatening to “get her” when she would be returned home. Citing her fear of her ex-partner, Deca made a refugee claim here in August 2006.

The Immigration and Refugee Board accepted the truth of the essential facts of her case. In particular, the Board accepted that not only was Deca abused in Canada but that she was also abused by her ex-partner prior to coming here.

Nonetheless, the Board denied her asylum claim.

The Board resorted to the often-used ground for refusal…”delay”.

The Board felt that Deca’s actions were not “consistent with the actions of a person with a subjective fear of persecution”. It reasoned that she obviously knew how to turn to Canadian authorities for protection from her husband when he abused her here. Since she was being abused by him prior to their arrival here, she should have advanced her claim as soon as she arrived in Canada.

The Board expects that a person with a genuine fear of persecution will immediately seek asylum immediately upon arrival here. Board members often reason that a person who doesn’t do so is obviously not in genuine fear.

Any lawyer who practices in this field knows this not to be the case for several reasons.

Firstly, many genuine claimants are afraid to make a claim at the airport since they believe that they will be sent back on the very same plane on which they arrived. They prefer to enter Canada, get away from the airport, and seek trustworthy guidance before approaching authorities.

Secondly, when people are in genuine fear, they will avoid anything that creates the possibility that they might be returned to the place where they face danger. If they make it to Canada without incident, they will often remain underground for years without making a claim. They know that making a successful claim only has, statistically speaking, about a 50% chance of success and, of course, a 50% chance of refusal. They feel that it is safer to remain underground than it is to surface.

Thirdly, many claimants come from countries where authorities simply can’t be trusted. Getting them to trust ours takes time.

Yet in other cases, clients who appear to qualify for permanent residence in Canada might apply through other means believing them to be a safer option than playing Russian roulette with the Board.

It sometimes seems that the Board is stuck in the days of the Cold War when the very first words uttered by a defector were a request for protection.

Deca got lucky when she appealed to the Federal Court. Mr. Justice Campbell found it “obvious” that until 2006 there was no reason for her to make a refugee claim and concluded that the decision to the contrary constituted a “fundamental reviewable error”.

A delay in making a refugee claim carries a certain amount of risk and should be avoided whenever possible.

Having said that, I believe that it is those who truly fear for their lives who are in the best position to decide for themselves, and their dependents if, and when, they should place their lives in the hands of our less-than-perfect refugee board.

————————————-

Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist.  Reach him confidentially at 416-862-0000 or at reporter@migrationlaw.com.