Episode #14 – How to overcome systemic barriers in LGBTQ asylum claims, with Sharalyn Jordan

Steven Meurrens

Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University.  She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs. She can be found on Twitter @SharalynJordan

 

In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims.  Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim.

How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay?

What do Immigration and Refugee Board members expect from LGBTQ claimants?

How can counsel assist LGBTQ claimants?

Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.

Topics

1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.

5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?

20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?

34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?

36:40 – What is the standard of persecution in the LGBT context?

44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?

53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.

Episode #13 – Problems with the Safe Third Country Agreement and Interdiction, With Efrat Arbel

Steven Meurrens

Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia.  She is an executive member of the Canadian Association of Refugee Lawyers.  A list of Dr. Arbel’s recent publications can be found here.

During this podcast we talk about three areas that Dr. Arbel has recently focused her research on.  These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement.

The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement.  In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States.

This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast.

1:43 – Dr. Arbel explains different concepts of what a country’s border is, and the distinction between the physical border and the legal border.

4:10 – We discuss the Canada Border Services Agency’s multiple border strategy, the role of Canada Border Services Agency liaison officers, and interdiction.

16:15 – We briefly summarize Canada’s new Electronic Travel Authorisation.

19:00 – Dr. Arbel provides an overview of global refugee flows.

22:50 – Can claim asylum at a Canadian embassy abroad.

28:30 – Peter Edelmann addresses how the previous government tried to address the supply and demand of refugee intake.

33:20 – Steven asks Dr. Arbel what she thinks about the Government of Canada’s recent announcement that if a certain number of Mexicans claim asylum then the visa requirement against Mexico will be re-imposed.

41:00 – We introduce the Safe Third Country Agreement.

44:00 – Why someone would prefer to claim refugee status in Canada rather than the United States.

51:40 – What are the exceptions to the Safe Third Country Agreement?

Episode 12 – Tips on making written and oral arguments in court, with Justice Alan Diner

Steven Meurrens

The Honourable Alan S. Diner is a judge with the Federal Court of Canada.   Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice.  He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.

We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint.  As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.

A review of what we discussed is as follows:

1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.

14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.

18:30 – Justice Diner provides his first three tips to lawyers appearing  in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.

23:10 – Peter asks Justice Diner whether immigration representatives should consider preparing visa applications with possible litigation in mind and how long judicial review applicant records should be.

28:00 – How many arguments should someone make in a judicial review application?  If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?

35:00 – Given that there is a chance that the judge reading judicial review submissions could be a new judge, how much should lawyers explain what the law is in their legal submissions?

42:30 – When should counsel propose certified questions?

46:00 – Tips for citing cases.

49:30 – Is the increased number of sources of immigration law (legislation, Ministerial Instructions, guidelines, the immigration website, etc.) complicating the Federal Court’s ability to determine whether a decision was reasonable, and counsel’s ability to make arguments?

57:00 – Who makes a better litigator? Someone who is also a solicitor or someone who practices exclusively in judicial reviews and appeals?

1:01:00 – Tips for oral advocacy.

1:12:00 – Justice Diner reminds counsel on the need to balance strong representation of a client with being an officer of the court.

1:17:00 – We end with what might be the most important tip of all – the importance of not procrastinating.

Episode 11 – Tensions between political oversight and politicizing officer decisions, with Lorne Sossin

Steven Meurrens

We discuss three topics. The first is the oversight of police, CBSA, and immigration officers in Canada. How do we ensure that there is political oversight and accountability without politicizing the day to day operations of individual officers? The second topic is a discussion of Charter rights and Charter values in the immigration context. Finally, we talk about whether it is OK that in Canada individual immigration officers can create an apply their own standards of the law.

Lorne Sossin is the Dean of Osgoode Hall Law School. Prior to his appointment, he was a Professor with the Faculty of Law at the University of Toronto. Dean Sossin also serves on the Boards of the National Judicial Institute and the Law Commission of Ontario. He has also acted as Research Director for the Law Society of Upper Canada’s Task Force on the Independence of the Bar.

A review of what we discussed is as follows:

00:00 – Introduction

00:51 – Steve Meurrens says what one of his favorite things about law school is.

01:14 – Overview of topics

02:55 – The role of federalism in police oversight.

06:30 – Is criminal law local or is it national?

09:09 – What are the mechanisms which limit executive oversight and police accountability in Canada and how can this be balanced for the need to avoid political interference in day-to-day police activity. Who decides on the operational day to day activities of police?

13:30 – Can a cabinet minister issue an edict directing police not to arrest people? For example, the Trudeau government wants to legalize marijuana, so can they just issue an edict stating that arrests should stop. Who should make the decision?

17:40 –   If individual decision makers or police units drive decisions there will be inconsistencies. What methods exist for people to address inconsistencies?

19:45    Many jurisdictions are creating independent oversight offices. What is the success of these? As well, what role does prosecutorial discretion play in both insulating decisions and providing oversight?

25:00    What role do departmental guidelines play in decision making?

27:30    In immigration law the Minister can make decisions that differ from visa officers. Indeed, the Immigration Minister has an office to receive applications and intervene in applications. Is this appropriate?

30:30    What is the Charter? What is an administrative tribunal?

34:20    Immigration officers are considered to be administrative tribunals, Should visa officers, IRB members, etc. consider the Charter when making decisions.

37:00    When is the distinction between Charter rights and Charter values?

42:10    Do Charter rights and/or Charter values apply outside of Canada?

43:15    Are Charter values arguable before visa officers or at the IRB?

48:20    Is it a breach of the rule of law that different visa officers can develop different tests for immigration?

57:30    How is standard of review jurisprudence likely to develop?