Main Legal Issues in Every Refugee Hearing
Barsky argues that «interpreters should be recognized for what they are, which is culture agents and not transmitters of words, and they should be specially trained for this role and encouraged to participate more actively in hearings. Given the general knowledge that interpreters have of the respective countries of origin and of the procedure itself, they should be legally recognised as active intermediaries between the applicant and the judicial body and not as harmless means of translation. Barsky`s interpreters would have the flexibility to assist the applicant in answering questions and seeking clarification. In his vision, they could go so far as to compensate for the complainant`s errors in judgment and add context to the political, historical and social situation in the plaintiff`s country, and even «improve the narrative.» By simply telling a good story, an active interpreter could help a complainant reach a decision-maker who has been numbed by indifference by spending his days listening to horror stories from around the world. Barsky concludes that «if the role of the interpreter is limited to that of a translation machine, one of the few ways to compensate for the shortcomings of the system is to avoid providing real relief.» With or without legal assistance, an asylum seeker must prove that he or she meets the definition of a refugee. Asylum seekers often provide substantial evidence throughout the positive and defensive process, either by showing previous persecution or that they have a «well-founded fear» of future persecution in their home country. However, the individual`s own statement is usually decisive for his asylum decision. For example, in George, footnote 100, the Court noted that «given the applicant`s general lack of credibility, the RPD did not give probative value to the rest of the supporting document, other than identifying it in a list,» and that the RPD used the type of reasoning deemed inappropriate in Chen and Momanyi: draw a finding of credibility without fully considering the evidence, and then reject the evidence on the basis of those previous conclusions. Further, the RPD gave no indication as to why Mr. George`s credibility tarnished the credibility of other witnesses, including his family, friends and even third parties who had no interest in the outcome (specifically, the owner and a daycare employee who described the attempted abduction of Mr. George`s daughter). [emphasis added] Section 7 of the Charter of Rights and Freedoms guarantees that «every person has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.» In Singh, the Supreme Court of Canada held that the word «everyone» includes any person physically resident in Canada. Because of the importance of credibility, the Court found that refugee claimants present in Canada are entitled to a full hearing. According to Justice Bertha Wilson, «fundamental justice requires that credibility be established on the basis of an oral hearing when there is a serious question of credibility.» In 2019, the Trump administration enacted the so-called Migrant Protection Protocols (MPPs), forcing many asylum seekers to stay in Mexico for months or even years, waiting for a hearing date before a U.S.
immigration judge. In the spring of 2021, the Biden administration began liquidating lawmakers, allowing many asylum seekers forcibly stranded in Mexico to travel to the United States to pursue their asylum claims. This updated practice notice addresses the U.S. prohibition on business relocations. If a party wishes to summon a witness, it must provide information about the witness in writing to the other party and to the Division in accordance with subsection 44(1) of the RPD Rules. If a party does not provide the witness` information, the witness may not testify at the oral proceedings unless the Division authorizes the witness to testify. Footnote 41 The Board decides, at its discretion, whether a witness may testify if the application is made late and not in accordance with rule 44. Footnote 42 When assessing a claim, all evidence must be considered. In other words, the Commission must consider all evidence found to be credible, including written evidence. In the Joseph case, Justice O`Reilly stated: «Even if the Chamber finds that some evidence is not credible, it must continue to consider whether there is any reliable evidence to support a well-founded fear of persecution. Footnote 77 In Uyghur case, the Court gave another reason why the fact that a claimant was granted refugee status on the basis of similar experience should not bind the Chamber: «previous decisions, including those relating to family members, may have been wrongly decided.» Footnote 126 Despite the problems associated with oral hearings, there are still good reasons to request them. They provide the applicant with a better opportunity to address their concerns.
You can put a human face on paper documents. But there is no simple solution to interrupt the immediacy of an interpreter. If proposals such as Barsky`s represent too radical a change in the role of the interpreter, perhaps a more modest improvement would be to recognize that it is unrealistic and harmful to claim that the interpreter can be invisible in the process. A more urgent – and difficult – transformation would be to change what Rehaag describes as «administrative, political and cultural factors that have come together in recent years to build a `culture of disbelief` towards refugees.» One way to begin this change would be to consider Luker`s suggestion that, rather than assuming a position of disbelief, «it is appropriate to begin with a rebuttable presumption of credibility or truthfulness on the part of the claimant.» There can be many reasons why an applicant is not as emotional as the Board might expect, including cultural differences, translation issues, or a stoic personality. Footnote 225 An applicant`s mental state resulting from a past traumatic experience may affect his or her ability to testify. Footnote 226 If the RPD were to find that the applicant was not credible, there could be a verifiable error if these factors were not considered in its reasoning. Among the most common justifications for requiring oral hearings before the RPD are that they allow members to assess an applicant`s conduct and the consistency, plausibility and consistency of his or her background. Face to face, the decision-maker will somehow be able to tell if the applicant is telling the truth. This basic assumption does not seem to be true.