Asylum seekers: the pitfalls of hearings
When you are an asylum seeker, the difficulties do not end once you arrive in Canada. With the pandemic, these difficulties seem to have worsened, disrupting the hearing process. Linda* played her future in Quebec from her living room. The native Cameroonian passed the hearing of her asylum application at the beginning of November, so she was among the first to experience the virtual hearing. Her lawyer was at her own home, so she was alone in front of her screen.
“I saw the Commissioner [of the Immigration and Refugee Board (IRB)]. Other people were behind, but I never saw their faces, just their names. During the interview, I did not see my lawyer, it was just me and the police officer. It can be intimidating for some,” she explains. Before the pandemic, the applicant was summoned with his lawyer to the premises of the impressive Guy-Favreau complex on René-Lévesque Boulevard.
After resuming in person In mid-September, the tables in the premises decorated with Plexiglas and the people wearing masks, asylum hearings have been taking place virtually since October 2020. This digital transition can have its excesses. Frantz André, president of the Action Committee for Persons without Status, fears that asylum seekers will suffer from this imposed distance between participants.
“A humanitarian issue is being dehumanized. The Commissioner does not see the applicant sweating from stress, for example.”, he criticizes, referring to all the non-verbal signals that do not appear in the frame of a camera. The activist says that the beginnings were difficult for technological reasons: connection or sound problems, inability to see the participants, etc.
But a few weeks later, everyone is starting to get used to this new way of working. Linda explains that she and her lawyer simulated the hearing to test the computers. “It can be difficult for someone who is not familiar with computers,” she admits, not to mention the access to technology that can be difficult for some. However, Linda much preferred to audition by camera.
“I preferred to stay at home. Not being in immigration, between four walls with all these people, reassured me a lot,” she explains. Having to show up in person would have been much more stressful for her.
Prolonged precarious wait
Linda and her son entered Quebec in April 2018 via Roxham Road. Upon arrival, she was provided with a list of legal aid lawyers to help her with her asylum application. Two years and seven months later, in October 2020, she was summoned for a hearing that would take place four weeks later. It can take up to three years for the federal government to consider an application and summon the person to an IRB hearing. This hearing can determine the life of an individual. While there is the possibility of an appeal, an application to the Federal Court and, as a last resort, the possibility of filing a humanitarian claim, the chances of obtaining refuge are slim if the first decision was negative. “The acceptance rate on appeal is 5% and it is close to zero with the Federal Court.”, says Frantz André.
It was precisely not the hearing itself that worried Linda the most, but the uncertainty behind this interminable wait.
Processing times were already long before February 2020, but with the pandemic, hearings were postponed and numerous activities and procedures have been slowed down, or even completely stopped. “I got an answer directly, but I know some who had their hearing in January or February and who still don't have an answer.”, says Linda.
Such an expectation makes it possible to stay in Quebec, to work and to settle in a home, but it keeps the person in a precarious status.
“I was stressed that I had not yet passed my hearing. Especially when I saw people who came after me who passed it before. You're there, you're doing your life, but you don't know if you can stay,” she explains.
Obvious files
While in many cases, it would not necessarily be necessary to go to court, according to Stéphanie Valois, a lawyer specializing in immigration. “Every woman from Sudan or Iran should always have asylum. Some files are so obvious! ”, she declares. Some applications are automatically accepted if they meet certain criteria.
This is the case with requests from people fleeing Yemen, where the war has ravaged the country since 2016. On the contrary, The commission obliges the holding of a hearing for a large series of sometimes subjective criteria, such as the need to investigate “questions related to the identity of the applicant.” “It would take more courage on the part of the IRB to accept more obvious cases”, believes Stéphanie Valois.
The fear of the translator
But beyond these new challenges brought about by the health crisis, there are others that are resisting the pandemic. Especially when the lawyer or translator comes from the same country as the applicant. “The lawyer who will exploit you the most is the one who is of the same origin as you”, criticizes Frantz André, who identified serious faults in the files of the applicants he accompanied. Just last July, three Hungarian lawyers in Toronto were convicted of systemic negligence in the files of Roma asylum seekers from Hungary. The class action resulted in $500,000 CAD in compensation.
The same goes for the interpreters. In order to ensure clear communication, each asylum seeker can be accompanied by a translator. However, with certain dialects and languages, the interpreter may come from the same place as the applicant. “Knowing this, the person fears that there will be leaks or a value judgment. For example, in the case of sexual violence, there will be a huge barrier to talking about this in front of the translator,” explains Chantal Ianniciello, a lawyer specializing in immigration.
More generally, cases involving gender or sexuality are regularly very sensitive cases. The lawyer says that she frequently has to defend people with HIV.
“There is a total refusal to talk about this in front of the translator. Sometimes we get the translator out and try to speak with simple words or with our hands. Especially since the relatives do not know that the person is affected,” says the lawyer. If the applicant fears that the interpreter will break professional secrecy and reveal their story to their community, this discomfort can compromise their hearing and therefore their status. Indeed, since the Commissioner is not aware of this issue, the discomfort may be misinterpreted by the Commissioner; crucial parts of the applicant's story may be omitted without the applicant being able to rectify.
“In an asylum application, one judges the other”
We find this subjectivity among all members of the IRB. “We are dealing with humans, both with the members and with the applicants. Everyone has their luggage. Prejudices and judgments can be a big problem.”, continues lawyer Chantal Ianniciello. The lawyer testifies that there is sometimes a difficulty in understanding certain issues, especially when the asylum seeker's story involves gender or sexual violence.Sometimes, a story that does not seem logical for the Commissioner may seem suspicious.
“In an asylum application, we judge the other and we expect you to remember when you were beaten, how many times, how long it lasted. But what are these expectations based on? As someone who has never been raped, I tell myself that I will remember it, because it is important.” explains Chantal Ianniciello. These same expectations were expressed during the hearing of a woman who has experienced a great deal of violence. “At first, it was a story of sexual assault.
She got pregnant and her parents forced her to marry. She lived years in total hell with her attacker. During all these years, she had 10 children and her husband cut off her fingers,” the lawyer says with emotion. While this last act seems to be the most serious, this person did not perceive it as being the worst in their own reality.
Being in a position of authority, commissioners bear the heavy responsibility of deciding the future of people who have been living in Quebec for several years. They should be based on the story written by the applicant, the evidence provided, and the answers given on the day of the hearing. However, this evidence can sometimes be difficult to provide, which can cost a person asylum. This is the case of an acquaintance of Linda, who was refused asylum, because the Commissioner did not believe that he really came from Mauritania. “The commission established that she came from Senegal and not from Mauritania. They rejected his request and his two appeals. All she has left is the humanitarian request.”, she says.
“They must judge the validity of a request based on feelings or emotions. It's random.” he chants. Since each decision is discretionary, Frantz André finds it unusual that no control exists to control this practice. Especially since the members of the CISR do not receive specific training. “Anyone can be a commissioner. You just have to have held a management position. But when you're not a lawyer and don't know how to read legal documents, that can cause mistakes,” he exclaims.
Training commissioners
For lawyers Stéphanie Valois and Chantal Ianniciello, the training of commissioners should be expanded. Their responsibility for the life of another person, but also the need to question them about difficult subjects, even traumas, is too much at stake to neglect their training. “Understanding the other person's point of view is not easy. They should be taught to better understand humans in order to improve judgment.”, says Chantal Ianniciello, referring to judgments on sexual violence in particular.
Last October, The IRB announced have set up a special team responsible for gender-based asylum applications (ESDAG). 24 experts were brought together to reflect on these issues and to be trained for four weeks. Their work began at the end of October. Like the issue of gender, that of race also seems to have been taken seriously by the IRB, following the latest Black Lives Matter movements.
So much so that a reflection is under way to know what should be done to be more sensitive to the reality of minorities, from the point of view of the other. According to Chantal Ianniciello and Stéphanie Valois, this approach is more than welcome: “We are white. How can we speak for black people? ”, they ask themselves. We asked the Commission to react to these various initiatives, but we have not yet received a response.
For the lawyers, while these thoughts are not linked to the pandemic, it has certainly helped to improve everyone's tolerance: “everyone saw what it was like to experience big changes”, they say. A collective achievement bodes well for asylum seekers, who may be better understood and for whom everyone will have more empathy.*Out of respect for his anonymity, this first name has been changed
Resources and information to learn more
There is a Legal aid office specializing in immigration law located at 425 boul. de Maisonneuve. This site lists existing offices in other cities in Quebec. The United Nations Refugee Agency has provided online help.
As well as the IRB, which created A kit available in 12 languages.
Government agents normally direct asylum seekers To the PRAIDA, a welcome program, once they have reached Quebec. Other organizations exist to welcome and integrate newcomers.
In Montreal: La Maisonnee, Refugee Action Montreal, Welcome to immigrants from East Montreal, etc.