Under Canadian law, any foreign national, whether they are unsuccessful refugee claimants or visitors, have rights their situation be assessed for risk to life, if they face deportation.
We had a client who initially was recognized as a convention refugee, but because of serious criminality allegations made by his country after his refugee hearing, was taken away his protected status on the application of the Minister of Citizenship and Immigration Canada.
We, as his counsel, did a thorough research on the country’s conditions and it was clear to us that, because of the country’s corrupted judicial system and the fact that our client presented to us his innocence, we needed to fight for his stay in Canada.
After gathering additional evidence by contacting lawyers and witnesses in our client’s country, we presented the Citizenship and Immigration Canada with a detailed comprehensive submissions.
It must be noted that we experienced a great deal of difficulties in gathering the evidence from a country where any lawyer or witness who acts against the government and for an accused, could be prosecuted and faced criminal charges themselves. So, we used this tactic: we contacted a lawyer who was on the criminal case of our client, told him the truth on why we need the information and the lawyer agreed to provide us with the names of some co-accused. The lawyer perfectly knew that in his corrupted country the accused and co-accused were innocent and the whole situation was a set-up created for the purpose of covering the real perpetrators of the crime who happened to be high rank individuals. However, the lawyer refused to give us a statutory declaration. We contacted some of co-accused who agreed to travel to a neighboring country and draft their affidavits from there. We assured them that Canada would never disclose their names. Later, we attached those witnesses’ written testimonies to the department responsible for assessing our client’s application for a Pre-Removal Risk Assessment (PRRA).
In addition to material evidence we presented with a detailed story of our client and legal arguments.
I, as counsel, like to draft my submissions in a way that no single relevant detail is missing. I don’t care how much it could take and explain to my clients that in order to succeed we need to know everything about their ordeal. I usually give my clients time to reflect on their lives and write me down their story as they see it and provide any details, even though they might seem irrelevant to them. Then, I examine their writing and ask questions. Then, I present their story in a way that it is material to their case.
In legal work it is very important to know under what section or sections of a statue you ask relief. I put separately in my submissions all relevant law, even though a decision maker may search the law themselves.
Then go arguments of facts and law. In the case of our client who was taken away his refugee status because of alleged criminality in his country, we built the following arguments:
- Whether or not in a corrupted country is it believable that an accused is actually guilty?
To prove our point that our client was innocent we presented with country’s conditions and also witnesses’ testimonies we obtained from our client’s country. It is interesting and useful for any counsel to know that, in order to make evidence believable, you have to draft an affidavit, attach relevant exhibits (photographs, ID documents) and, if the evidence is taken from another country, an original envelope of the sender. We also presented the decision maker with articles from local newspapers and the Internet about the alleged crime. The articles was extremely hard to find, but we did not stop before difficulties and spent a significant amount of time and effort as we knew that at stake is our client’s life and freedom.
- If to presume that our client is guilty of the offence, whether conditions in jails of that corrupted country, as well as the judicial system in whole, are adequate and fair and do not amount to cruel, inhumane and degrading treatment which will be contradictory to international standards and norms?
To prove that our client would not be granted a fair trial and, if convicted, be put in great danger when imprisoned, we provided our detailed observations on country’s conditions using sources such as Amnesty International reports, Human Rights Commission observations and articles from the Internet.
In conclusion, it is imperative to summarize your points and ask exactly what you want from the decision maker. Give them grounds for the positive decision to be a success. A counsel must remember that a decision maker is not your enemy, if they see your point and justification for your opinion.
