An Interview with Arghavan Gerami

August 19, 2015

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Arghavan Gerami is the Founder and Managing Director at Gerami Law Professional Corporation (‘PC’) and has been a practicing lawyer in Ontario since 2007. The CCLA spoke to her about refugee rights in Canada.

This article is part of a series of interviews with advocates, legal thinkers, community organizers and academics on issues related to Canadian civil liberties produced by CCLA volunteers. All responses are the interview subject’s own, and do not necessarily represent the viewpoint or positions of the CCLA.

CCLA: Can you tell me a little about your work? What made you decide to specialize in immigration and refugee law and venture out on your own?

AG: I have been practicing immigration and refugee law for the last 5 years. I decided to focus my practice in this area after spending a year at the Federal Court of Appeal, working with Honourable Mr. Justice John M. Evans in 2010 – 2011 on a number of immigration and refugee and administrative law appeals.  My constitutional law, human rights and international law education (LL.B and LL.M.) at Osgoode Hall Law School and legal experience at the Department of Justice (2009-2011) was also an excellent foundation for developing and building a successful law practice in the area of immigration and refugee law.

CCLA: You have spoken in universities on the topic of access to justice for refugees in our country. As a lawyer who has successfully represented many clients with their refugee claims, what are some of the types of barriers that you have noticed? What kind of changes should be made to the refugee determination process to ensure better access to justice for refugees? 

AG: Refugee claimants face multiple barriers to access to justice in Canada.

First, refugee claimants face barriers to effective representation due to financial insecurity. Many refugee claimants who arrive in Canada are in an extremely vulnerable situation both psychologically and financially, and must rely on legal aid to fund their legal representation.  Legal aid is not automatically given to low-income refugee claimants, and, even if granted, the certificate only covers a fraction of the hours required to effectively represent the claimants.  Therefore, as much work has to be done on a pro bono basis, lawyers are less willing to accept claimants with legal aid certificates, or may spend less time on a legal aid file.

Second, the new timelines introduced in 2012 serve as barriers to effective access to justice.  Once a refugee claim is made, the process moves very quickly, particularly for Designated Foreign Nationals or persons from Designated Countries of Origin.  Refugee claimants must be quick to find a lawyer, find funding for a lawyer, and attempt to amass the necessary identity and other documents that will help support their claim.  Claimants often leave their home country in a hurry, without all of their identity and supporting documents, and family members and friends in their home country are often reluctant to approach the government on their behalf. It is particularly difficult for persons in immigration detention (due to identity or security concerns) to secure representation and the necessary documents.

Due to the timelines, lawyers also have limited time to meet with the client, become experts on the country conditions of their country of persecution, file documents with the IRB, and prepare the claimants for the hearing.  Documents must often be sent for certified translation, as well, which is expensive and time-consuming. Therefore, the short timelines are barriers to securing effective representation and compiling the proof necessary to support the claim.

Third, the cost of travel and accommodation may be a barrier to access to justice, as claimants must now travel to Montreal for their hearing, due to the closure of the Ottawa IRB location.

Fourth, it is difficult for vulnerable claimants, such as victims of domestic or gendered violence, persons with psychological disabilities, or LGBT persons, to prove their claim.  Testifying may be difficult for victims of abuse, particularly if they come from a culture where it is improper to discuss it, or if the Board Member is male and the victim is female.  Persons with mental disabilities, like PTSD for instance, may experience difficulty in communicating or remembering details. LGBT claimants face difficulty in proving their gender and/or sexual orientation, especially if their friends or partners are unwilling to provide corroborating evidence, for example, if homosexuality or being transgender is illegal in their home country.  It is also expensive and time-consuming to obtain psychological evidence of mental illness or being a victim of domestic or gendered violence. Legal aid only covers a portion of psychiatric assessments.

Fifth, public rhetoric of refugees being “free-loaders” or “bogus” paint a negative picture of refugees that is both inaccurate and may be harmful by instilling bias in how the Board Member perceives the legitimacy of the refugee claim.  The mere fact that a claimant is unsuccessful in establishing refugee protection, based on the very narrow legal Convention grounds, does not mean that their intention was fraudulent, that they were “bogus,” or that their fear was not real. Canadian law, in fact, acknowledges the legal limitations of “refugee protection,” and therefore offers a pre-removal risk assessment to failed refugee claimants, to prevent them from being deported to a risk to life, torture, or cruel and unusual treatment.

Sixth, unsuccessful claimants are unable by law to make a humanitarian and compassionate application, or a pre-removal risk assessment, for one year following their negative refugee decision.  They can be deported in the meantime, possibly to death or torture.

In examining these barriers that refugee claimants face in Canada, it becomes apparent that justice is difficult to access.  To quote a journalist, Humera Jabir:

“Many claimants come to Canada fleeing the worst imaginable circumstances — war, torture and gender-based violence. Now imagine the difficulty of trying to send home for police reports, newspaper articles and other corroborating evidence within two short months of one’s arrival, never mind the difficulty of seeing a Canadian doctor in time to get medical or psychiatric reports to prove trauma. Then add a claimant’s inability to understand French or English, to access a lawyer or translator, as well as the possibility of being held in Canadian detention, and the chance of making one’s best case grows slim.”

Humera Jabir, “How have refugees become Canada’s new boogeyman?” The Star Newspaper (December 2013)

CCLA: The Minister of Citizenship and Immigration and other members of our government have often used the term “bogus” to refer to refugees whose claims might be rejected and have often painted a negative picture of them to the public. Do you feel like there should be greater public education on this topic? What might that look like? What are some of the reasons a refugee claim could be rejected?

AG: The term ‘bogus’ refugees is an unfair and inaccurate term applied by the government to those who have not succeeded in their refugee claim.   A negative decision by the Refugee Protection Division may result from a number of factors, including inadequate preparation for the hearing, self-representation at the hearing, insufficient supporting evidence, and errors by the decision-makers in their credibility assessment and application of the relevant refugee law.   A negative decision means that the claimant has failed to meet the legal standards under sections 96 and 97 of the Immigration and Refugee Protection Act.  In some instances these decisions are overturned on appeal and sent back for re-determination.  However, the failure to meet these standards does not necessarily mean that the refugee claimant is a bogus refugee who is not fleeing discrimination, oppression and hardship. It may simply be that they simply did not succeed to convince the decision-maker of their refugee case, with their limited means, often in a emotionally fragile state, and in the short time frames that applies to them.

CCLA: In the last few years, the Conservative government has made significant changes to the immigration scheme in Canada, such as the introduction of Express Entry or the overhauling of the foreign caregiver program. In your opinion, do you feel these changes and Canada’s new policies are a step in the right direction? If not, what’s the right approach?

AG: The changes introduced by the government certainly benefit some applicants by offering them faster processing time for Permanent Residents. However, it certainly limits the options of applicants who do not have an LMIA approved job offer, or a Provincial Nomination.

The new Express Entry system introduces an additional ranking system to the points requirements of the Federal Skilled Worker Program, Federal Trades Program, and Canadian Experience Class. Currently, the applicants not only have to meet the basic requirements of each category, but are also compared with other applicants in the same category. Half of the maximum ranking points are reserved for individuals with provincial nomination or a positive Labour Market Impact Assessment. Moreover, the language proficiency of candidates plays a significantly greater role in the ranking, meaning that applicants who are not fluent in either of the official languages could lose a lot of points. It also poses challenges to international students, who may not be qualified to obtain a LMIA for entry level positions that they are given.

As for the changes in the foreign caregiver program, there are both positive and negative changes. The removal of the live-in requirement is certainly a plus, as it provides greater flexibility to the workers. However, the introduction of caps on the applications accepted introduces insecurity in the chance of obtaining permanent residence. For years, caregivers have chosen Canada as a preferred destination, as after two years they would be able to apply for permanent residence and bring their families over. This is no longer necessarily the case, as the introduction of caps, education requirements and language proficiency requirements restrict the access to permanent residency for many of the current caregivers. I do not necessarily agree that this is the right approach, as the caregivers live in Canada, pay taxes, work hard and deserve to be rewarded with a certain and accessible path to permanent residency.  

Overall, the changes limit the access to permanent residency for individuals without a job offer or provincial support. It would be extremely helpful if the Government could conduct more consultations with stakeholders, such as applicants, businesses and immigration lawyers before introducing and implementing changes, in an effort to develop a more balanced immigration system that is fair, efficient and transparent.   

CCLA: The Harper government also introduced some significant changes to the Citizenship Act last summer through Bill C-24. Amongst the changes is a new power to revoke Canadian citizenship from dual citizens or permanent residents for reasons of national security or for engaging in armed conflict with Canada. In your view, what will be the consequences of such changes? Does this create a “two tier” citizenship?

AG: While national security is a legitimate concern, the changes in the Citizenship Act are not a step in the right direction.  At its core, the Citizenship Act violates the principles of fundamental justice, respect for minorities and the values underlying our constitutional democracy.  It was not informed by the accurate state of citizenship law in other common law jurisdictions; it did not consider the implications of the legislation on Canada’s international commitments and it formulated a procedurally unfair process to be applied by the Minister, without the independence of the judiciary, the guarantee of an oral hearing, appeal rights and the rule of law. 

In fact, the Citizenship Act is based on the inherently discriminatory notion that citizenship rights of naturalized citizens are worth less than Canadian born citizens.  Stripping certain individuals of their citizenship is comparable to banishment, a punishment that has not been used since the Middle Ages. Moreover, it raises suspicion, fear and mistrust in naturalized Canadians, creating a two-tiered citizenship which is clearly discriminatory and may likely be deemed unconstitutional.    

CCLA: The cuts to refugee health care has been an ongoing issue with advocates calling for better protection for refugee rights, and which your firm has worked on very directly. What is your view on the government’s stance on this issue and the broader policy implications?

AG: Since 1957, a Cabinet order had provided full health care coverage to refugee claimants.  In 2012, the Federal Government repealed this order and replaced it with a new Interim Federal Health Program (IFHP) that restricted coverage to refugee claimants based on which country a person was coming from and whether the illness in question posed a danger to the public health of Canadians.  In addition, all claimants lost coverage for drug costs, vision, and dental care.

The Canadian Doctors for Refugee Care (CDRC), Canadian Association of Refugee Lawyers (CARL), Justice for Children and Youth, and two refugee claimants launched a judicial review against the Orders in Council that established the 2012 IFHP, arguing that they violated the Charter

In July 2014, Justice MacTavish of the Federal Court found that the new IFHP denied funding for life-saving medications to impoverished refugee claimants, funding for basic pre-natal, obstetrical and paediatric care to women and children from Designated Countries of Origin such as Mexico and Hungary, and funding for any medical care whatsoever to individuals seeking refugee protection in Canada who are only entitled to a Pre-removal Risk Assessment, even if they suffer from a health condition that poses a risk to the public health and safety of Canadians (Canadian Doctors for Refugee Care et al v Canada (Attorney General), 2014 FC 651 at paras 2-4). 

The Court found that the IFHP violated the claimants’ section 12 freedom against cruel and unusual treatment, in that it jeopardized the lives of these innocent and vulnerable persons, particularly children, in a manner that shocks the conscience and outrages our standards of decency (para 11).  The Court also found that the IFHP violated their section 15 right to equality, as it provided a lesser level of health insurance coverage to refugee claimants from Designated Countries of Origin in comparison to that provided to other refugee claimants (para 12).

The Government had claimed that an objective of the IFHP changes was the amelioration of the health conditions of refugee claimants, but that it was situated in the context of government policy goals to process removals, reduce the time taken to decide refugee claims, restrict the multiple forms of recourse available to failed refugee claimants, deter possible abuse of the refugee determination system, limit costs to taxpayers, and protect public health and safety (paras 886-893). The Court found that the Government had failed to establish that the new IFHP had would contribute in a material way to the realization of any of these goals, and that the negative effects to refugees greatly outweighed the beneficial effects of the changes (para 1074).

As such, the Court declared the IFHP changes to be unconstitutional and gave the Government four months to make the IFHP Charter-compliant. The Government filed an appeal of the Court’s decision and also made a motion to stay the Federal Court’s order pending a decision on its appeal, but this was rejected.  The Government waited until the last possible day allowed by the Federal Court order to temporarily restore some changes to the IFHP, on November 4, 2014.  Under the temporary IFHP, coverage for hospital, medical, and laboratory services was restored to most beneficiaries; however, privately sponsored refugees, protected persons, designated country of origin claimants, some rejected refugee claimants, persons with positive pre-removal risk assessments, and persons eligible to make a pre-removal risk assessment application, were not extended coverage for drugs or supplemental benefits, which include dental and vision care, devices to assist mobility, home care and long-term care, psychological counselling, and post-arrival health assessments.

Two days later, on November 6, the Government re-repealed the 1957 Order in Council that had established refugee health coverage, which CARL stated casts doubt on the “government’s long-term commitment to following the court order and providing necessary health services for refugees.” (source)

In February 2015, CARL requested that Justice MacTavish provide clear instructions on her Court order of July 2014.  CARL argued that the Court order was intended to restore the pre-2012 refugee coverage, and that the Government’s recent changes to the IFHP in November continued to violate the Charter.  The Government conversely argued that the Court’s July decision did not extend a right to health coverage, but merely declared the 2012 changes unconstitutional.  In her February decision, Justice MacTavish held that, while the November changes may violate the Charter, she was unable to rule on it due to the finality of her July decision, and that a new judicial review would have to be brought, based on a new evidentiary record.

It is clear that the Government intends to obstruct the conferral of health benefits to certain categories of refugee claimants, in keeping with its policy objectives to deter migration from certain countries and to generally limit the legal options of certain claimants.  This is not surprising, given the increasingly restrictive laws governing the refugee system, which include limiting the ability of certain claimants from appealing a negative refugee decision, restricting the timelines of persons from designated countries of origin to make a refugee claim, facilitating removals as soon as possible, and denying the ability of failed refugee claimants from making a pre-removal risk assessment or humanitarian and compassionate application for one year.

It is noteworthy, however, that, in her July decision, Justice MacTavish found that the Government had failed to establish that the 2012 changes to the IFHP materially achieved any of its goals to deter migration, facilitate removals, reduce the backlog of claims, deter abuse of the system, limit costs to taxpayers, or protect public health and safety.  Therefore, it is difficult to reconcile why the Government seems intent on limiting the health care of refugee claimants in support of unrelated policy objectives in a manner that likely continues to violate their constitutional rights.