Academic journal article Refuge

The Guideline on Procedures with Respect to Vulnerable Persons Appearing before the Immigration and Refugee Board of Canada: A Critical Overview

Academic journal article Refuge

The Guideline on Procedures with Respect to Vulnerable Persons Appearing before the Immigration and Refugee Board of Canada: A Critical Overview

Article excerpt

Abstract

This paper presents a critical overview of the Guideline on Vulnerable Persons, adopted by Canada's Immigration and Refugee Board (IRB) in December 2006 with the goal of providing procedural accommodations for vulnerable individuals appearing before the Board so that they are not disadvantaged in presenting their cases. Although the Guideline is a step in the right direction, it has several serious shortcomings, notably the fact that it is purely procedural in scope, applies only to persons whose ability to present their case is severely impaired, and does not give sufficient weight to expert opinions by mental health professionals.

Resume

Cet article propose un coup d'oeil critique sur le document Directives sur les procedures concernant les personnes vulnerables qui comparaissent devant la CISR, adopte par la Commission de l'immigration et du statut de refugie du Canada en decembre 2006 dans le but de fournir des accommodements en matiere de procedure pour les personnes vulnerables appelees devant la Commission, et cela afin quelles ne soient pas desavantagees pour presenter leurs cas. Bien que la Directive soit un pas dans la bonne direction, elle a plusieurs manquements serieux, notamment le fait que sa portee est limitee en matiere de procedures seulement, quelle ne s'applique uniquement quhux personnes qui ont des handicaps graves pour presenter leur cas, et n'accorde pas suffisamment d'importance a l'opinion d'expert presentee par les professionnels en matiere de sante mentale.

Introduction

For many years, refugee advocates and mental health professionals have demanded that Canadian immigration authorities adopt policies to meet the needs of psychologically vulnerable asylum seekers and permanent residents. On December 15, 2006, Canada's Immigration and Refugee Board (IRB or Board) issued a guideline designed to respond to some of these concerns, Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB (Guideline on Vulnerable Persons, or Guideline 8). (1)

Psychological vulnerability may detrimentally affect asylum seekers and permanent residents in a variety of ways. First, it may affect the person's ability to coherently and persuasively present her case before the IRB. Procedural changes (e.g., allowing a support person to be present) will often be helpful but may not be sufficient to overcome this disadvantage. For example, a person who has experienced torture or rape may well have difficulty telling her story to the Board despite procedural adjustments. Her account may still be marred by inconsistencies, vagueness, omissions, late disclosure, apparent lack of emotion, or other characteristics that can easily be mistaken for signs of untruthfulness. To ensure that vulnerable persons are not disadvantaged in presenting their case, it is therefore essential to take psychological problems into account when assessing the person's credibility in addition to allowing procedural accommodations.

Second, psychological problems may affect the person's ability to seek state protection or to relocate, and should therefore be considered when analyzing these aspects of the refugee claim. Third, some permanent residents or refugees may face removal for mental health related criminal offenses such as an assault committed while in the grip of psychotic delusions or a robbery linked to drug addiction. In such cases, it would seem reasonable to take diminished responsibility into account. Fourth, psychological vulnerability should be considered in deciding whether a detained asylum seeker should be transferred to a community facility or released under a bond. (2) In the United Kingdom, for example, it is now unlawful to detain asylum seekers who have been tortured. (3)

Finally, the heightened vulnerability of psychologically disturbed persons is a relevant factor when assessing the risks they would face if returned to their country of origin. …

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