The Immigration and Refugee Board Must Consider the Impact of Its Decisions on Canadian-Born Children
The Federal Court recently decided that the Immigration and Refugee Board (‘IRB’) must consider the impact of a negative refugee decision on children born in Canada, and take into account all the personal circumstances of the claimant, along with current country conditions at the time of the refugee hearing.
In this case, two Libyan parents claimed refugee protection in Canada on the basis that the male applicant faced persecution from assailants in his home town. Since arriving in Canada, they had a child. Although the IRB found that their fear of persecution was credible and well-founded, it ultimately rejected the refugee claim on the basis that the Applicants had an Internal flight Alternative (‘IFA’) in Tripoli, an area to which they could reasonably be expected to relocate. The Applicants sought help from a refugee lawyer and refugee law office to appeal the decision.
Refugee lawyers in Canada have long argued that personal circumstances of a claimant must be considered in deciding whether and IFA is reasonable and viable. Part of those personal circumstances is obviously the fact that one has a child who has to relocate with the family. Similarly, Canadian refugee lawyers have argued that a person’s psychological vulnerabilities and conditions must be considered in rendering a decision on the basis of IFA.
Gerami Law PC, a refugee law office, filed a judicial review application on behalf of the Applicants, arguing that the IRB had erred in assessing their IFA by failing to assess the dangerous conditions in Tripoli and the negative effects of relocating there on their Canadian born child. The Federal Court agreed with the Applicants, finding that, although they would not face persecution in Tripoli, the IRB failed to assess the security conditions in Libya, and the viability of safely relocating to Tripoli.
Significantly, the Court also found that the IRB had erred by failing to assess the impact of relocating to Tripoli on their minor Canadian child. The Refugee Protection Division knew that the minor child existed and should have considered her in assessing whether the IFA was reasonable. Thus, refugee lawyers in Canada can now rely on this argument on behalf of their clients, arguing that the unity of families must be factored into refugee determinations in a more meaningful way.
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Arghavan Gerami
Arghavan Gerami is the Founder and Senior Counsel at Gerami Law Professional Corporation ('PC'), a full-service immigration law firm in Ottawa, Ontario. Since 2011, Ms. Gerami has focused her practice on immigration and refugee litigation. Prior to that, Ms. Gerami worked at the Ministry of Attorney General and the Department of Justice and had the privilege of serving the Honourable Mr. Justice M. Evans at the Federal Court of Appeal on immigration and administrative law appeals. Ms. Gerami contributes to the Immigration Law Section of the Canadian Bar Association, the Canadian Association of Refugee Lawyers, and the United Nations High Commissioner for Refugees. Ms. Gerami has also published numerous journal articles and presented at various immigration and refugee law conferences and events across Canada.