Author: Joel Sandaluk
I have represented clients in hearings before the Immigration and Refugee Board (IRB) for over two and a half decades. Over that time, I have learned that one of the most important things I can do before a hearing has nothing to do with law at all, it is properly preparing my clients for what a refugee hearing actually feels like, so they can testify with confidence and offer the most credible evidence possible on their ‘day in court’.
Expectation vs reality
Many clients expect a refugee hearing room to look like a courtroom they have seen on television or in films, with a decision-maker sitting high above them in an imposing, intimidating space. The reality is far less dramatic. A Board member may sit slightly elevated, but nowhere near the way in which a judge might preside over a criminal courtroom. Refugee hearing rooms themselves tend to be smaller, plainer, and far less imposing than clients expect and fear.
What is a refugee hearing?
The hearing of a claim for refugee protection is a formal, quasi-judicial process in which an RPD Member examines a claimant and their witnesses (if any) to determine whether the claim meets the legal standard: that there is a reasonable possibility that the claimant will experience persecution in the claimant’s country of nationality or habitual residence, of which they have a subjective fear. The hearing process is inquisitorial, meaning the Board member takes a proactive role in examining witnesses. That questioning often touches on issues such as: whether an internal flight alternative exists, whether state protection is available, and whether the claimant delayed claiming protection elsewhere, among other matters. Ultimately, the Board member must reach a conclusion about credibility, or whether they believe the claimant’s story.
Claimants have the right to be represented by counsel (ideally a lawyer), who can examine witnesses, lead evidence, and make legal submissions on their behalf.
What genuinely surprises my clients
In my experience, a few things about the hearing process consistently catch clients off guard, and I make a deliberate effort to prepare them for each one well before the hearing date.
The level of detail involved.
The Board will scrutinize a claimant’s Basis of Claim (BOC) form and narrative closely, and claimants must be ready to answer detailed questions about their personal history and the events underlying their claim, including specific dates, locations, and other details that may not have crossed their mind in months or even years. Because a hearing can take place long after the BOC is filed, it is essential for claimants to become reacquainted with every detail of the narrative and the supporting evidence beforehand. A Board member is entitled to draw an adverse inference where testimony contradicts a claimant’s earlier statements.
The centrality of the Basis of Claim narrative.
The BOC narrative is the foundation stone of every refugee claim. Every detail in it needs to be accurate, and if relevant events have transpired since it was first filed, the narrative may need to be amended. Amendments should be made and disclosed in advance of the hearing and confirmed at its outset. Waiting until the hearing itself to raise new information risks the Board treating it as an embellishment rather than a genuine update.
The difficulty of testifying through an interpreter.
Many refugee hearings require a Board-certified interpreter. Claimants who have been in Canada for some time often understand English or French reasonably well but still find it harder to express themselves fully in the language of the proceeding. Working with an interpreter is its own skill: it requires speaking slowly, clearly, and in short segments so the interpreter can accurately convey the testimony as it is given. Many claimants find this to be unnatural and incredibly challenging as a result.
The physical and emotional toll of testifying.
Hearings can run for hours, sometimes across multiple sittings. Being examined and cross-examined about deeply personal and often traumatic history for an extended period is physically and emotionally exhausting. Speaking openly about such matters, even in a closed (or in camera) hearing can be very difficult for many people. Claimants need to go in rested and mentally prepared for what is often a genuinely difficult experience.
A case that stays with me
Years ago, I represented a claimant who is a lesbian and a citizen of a country where homosexuality is both criminalized and prosecuted. During the course of her hearing, which lasted hours,she was asked detailed and deeply personal questions about her sexual history and other private aspects of her life, something difficult to speak about even behind closed doors. She also had to recall precise dates and details of hospital visits, interactions with police, and encounters with relatives, all of which were tied to her fear of being discovered and persecuted. Because many of these events had happened years earlier, recounting them and describing how they made her feel was exhausting, even in retrospect. In the end, her claim succeeded. She was granted refugee protection and is now a proud Canadian, though she has told me she has no wish to relive that day.
Preparing for a refugee hearing shouldn’t mean facing it without guidance.
If you or someone you know has a refugee claim before the Immigration and Refugee Board, thorough preparation can make the difference between a hearing that goes well and one that doesn’t. At Mamann Sandaluk LLP, our lawyers have decades of experience preparing clients for refugee hearings and guiding them through every stage of the process, from the Basis of Claim narrative to the hearing itself.
Contact us today to discuss your refugee claim.
FAQ
What happens at a refugee hearing in Canada?
At the hearing of a refugee claim, the Board member begins with a brief explanation of the process and admits the documentary disclosure into evidence. From there, the Board member examines the circumstances surrounding the claim for refugee protection to determine whether the claimant has met their legal burden: establishing a well-founded fear of persecution in their country of nationality or former habitual residence.
Who decides the outcome of a refugee hearing?
A refugee claim is decided by a member of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRB). A Board member is an independent, impartial decision-maker and is not an employee of either Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA).
How should I prepare for a refugee hearing?
Preparing for a refugee hearing is a detailed and time-consuming process. It involves a thorough review of everything already before the tribunal: your Basis of Claim narrative, your forms, disclosure received from CBSA and the Minister, and country condition documents used to provide context for your claim for refugee protection. Your lawyer should be closely involved in this preparation with you. Because the process takes real time to do properly, it should begin weeks before your hearing date, not days before.
What if I struggle to recall details of a traumatic event during my testimony?
In my experience, thorough preparation resolves this difficulty for most claimants. That said, if you continue to have trouble testifying, for example, as a result of post-traumatic stress disorder (PTSD) it is prudent to obtain medical evidence, including a diagnosis of PTSD and an assessment of how that condition affects your ability to recall and describe past events. This kind of evidence can help the Board understand gaps or inconsistencies in your testimony that might otherwise be held against your credibility.
Can a lawyer attend the hearing with me?
Yes. Every claimant has the right to be represented by a refugee lawyer at the hearing of their claim. Your lawyer can examine you and any other witnesses, and make submissions to the decision-maker in support of your claim. It is generally a good idea to retain a lawyer for your hearing because in many cases, skilled representation is the difference between success and failure before the tribunal.