Refugee claims – The PIF lives on?

Under Bill C-11, the Balanced Refugee Reform Act, the most adverse amendment for claimants might relate to the elimination of the Personal Information Form (“PIF”) and the shortened time frame between initial refuge claim and an interview with a government Officer. The current PIF is a form to be drafted and presented to the Immigration and Refugee Board within 28 days of receiving the form after making a refugee claim in Canada. The PIF sets out the claimant’s background and the facts relevant to the assertion that the claimant meets the definition of refugee under the United Nations Convention on Refugees and related Protocol [1] or that the claimant is a “person in need of protection” within the meaning of the Immigration and Refugee Protection Act, s.97 [2]. If the claimant has retained legal counsel, the PIF can be drafted, with the assistance of the lawyer, to set out completely, but concisely, all the information relative to the claim, including facts from the country of origin that support the definitions of refugee and person in need of protection – i.e. to tell the claimant’s whole story in a compelling fashion. As well, the PIF can anticipate the issues that may arise at the Immigration and Refugee Board hearing, such as whether the claimant could have applied in another “safe country”, whether state protection was available in the home country, could the claimant have fled to another region in the home country, etc

Under the new legislation, starting on June 29, 2012, an “information-gathering interview” will occur with no sooner than 15 days after a claim has been made. The Officer conducting the interview is not supposed to consider written reports passed in to him before the interview. Rather the Officer will speak with the claimant and gather directly from the claimant all the information that he/she considers relevant. The report of the interview is then conveyed to the Immigration and Refugee Board (“IRB”) for hearing, normally within 90 days (60 days if the claimant comes from a “designated country” concerning which there is a presumption that the claim will probably not succeed). Lawyers can attend the interview although the extent of their interventions is not yet clear. The interview is to deal purely with the facts and not with information related to the credibility of the claim- i.e. whether the story is to be believed.

Obviously the new system disadvantages claimants. Most practitioners assert that there is simply not enough time to adequately prepare the case and the absence of a formal written submission will lead to innocent inconsistencies and omissions that would not occur with the PIF. Also, the quality of the report will depend in great part on the capabilities and fairness of the interviewing Officer.

Lately, in response to these constraints, some experts have contended that the logical response will be to prepare a modified type of PIF, after the interview for presentation to the IRB at the beginning of the hearing. Such a document could address any inconsistencies; omissions or errors that arose in the interview and could also anticipate issues of credibility. It could set out the claimant’s whole story in the way that the PIF was intended to do.

At first glance, one might anticipate that the IRB will resist this approach, deeming it a means of circumventing the changes to the process and slowing down the system. In my view, though, there is nothing in the new rules that would specifically exclude this new type of documentation. Indeed, having a clear and complete depiction of relevant facts and issues may well be welcomed by hearing panels as a way of saving time that would normally be spent verbal adducing evidence through witnesses. Finally, apart from possible delays at the IRB hearing, the new approach would respect the new time frames under the reforms.

We will see how this rolls out, but it is clear that the Refugee Bar is already making adjustments to ensure that clients are fully and fairly represented despite the obstacles placed in claimants’ path under the guise of “balanced reform”.

[1] See http://laws.justice.gc.ca/eng/acts/I-2.5/page-29.html#h-46 -“any person who is outside their country of origin and unable or unwilling to return there or to avail themselves of its protection, on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group, or political opinion

[2] Immigration and Refugee Protection Act (S.C. 2001, c. 27)


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