When hope runs out

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This article was published 13/12/2013 (3780 days ago), so information in it may no longer be current.

More than 10 million people around the world have fled war, famine and abuse in their home countries.

They’re literally dying trying to escape places like Somalia, Eritrea and Syria. After paying their life savings to smugglers to take them someplace safe, their bodies are being pulled from the Mediterranean Sea and African desert.

And for those fortunate enough to reach Canada and claim refugee status, they get one shot at pleading their case.

If they’re lucky, the case will be heard by an Immigration and Refugee Board adjudicator with a record of accepting refugee claims.

If they’re unlucky, the case will be heard by one with a high rate of rejection.

It can be that simple. It can be that cutthroat. It can come down to the luck of the draw.

The person hearing the case — more than anything — determines whether or not refugees will be allowed to stay in Canada, says Osgoode Hall law professor Sean Rehaag.

“The stakes are high for refugee claimants confronting deportation to countries where they may face persecution, torture or death,” Rehaag wrote in the 2012 study — Judicial Review of Refugee Determinations: The Luck of the Draw?

He found “vast disparities” in refugee claim rates for Immigration and Refugee Board members in 2011. For example, adjudicator Daniel McSweeney heard 129 cases but didn’t grant a single refugee claim that year. Adjudicator Thomas Pinkney, however, approved nearly 99 per cent of his 746 cases.

Rehaag also looked at 23,000 applications for appeal by rejected claimants to Federal Court and found “troubling inconsistencies.”

In those cases, a judicial review was more likely granted if a Liberal-appointed judge was looking at it (43 per cent) compared to a Conservative Party appointee (26 per cent). Female judges were slightly more likely to grant leave to appeal (43 per cent) than male (39 per cent). The location of the judge reviewing the request also made a difference. In Montreal, only 25 per cent of requests for review were granted versus 45 per cent in Toronto and 43 per cent in other Canadian cities.

The results weren’t a surprise to researchers.

“These findings confirm earlier empirical research with every major study over the past 20 years coming to the same conclusion: The process is unfair and needs to be reformed,” Rehaag wrote.

That’s what refugee advocates and immigration lawyers have been saying for years.

“Every person selected to come to Canada is selected by a single person,” says the head of one of the largest private sponsors of refugees in Canada.

“Those decisions are very difficult to challenge,” Tom Denton, executive director of Winnipeg’s Hospitality House Refugee Ministry, says. “They always circle the wagons and defend the decision.”

However, the Immigration and Refugee Board says judging its performance solely on statistics is flawed.

“Statistics on acceptance rates provide an insufficient basis on which to draw conclusions concerning the quality and consistency of decision-making at the IRB,” the board said in a prepared statement.

“Acceptance rates of individual IRB members do not reflect the many factors — besides the alleged country of persecution and the conditions in that country — that members must consider before making a determination.

“Each claim is decided by an independent decision-maker on its own merits and in accordance with the evidence and submissions made at the hearing. Each case is unique.”

Below, we examine the stories of five people who made refugee pleas during two days in October.

Sahra Abdikarim Farah fled the Somalian capital of Mogadishu as a child more than 20 years ago with her mom and brother.

Maki Hassan Ahmed, 28, escaped Somalia.

Oluyemisi Akinbinu, a nurse, fled Nigeria.

Two Eritrean sisters only agreed to share their story if their identities are protected out of fear of retribution, arguing they face prison or death if they go back to Eritrea.

Sahra Abdikarim Farah

Most Canadians have no idea what goes on in the refugee protection division of the Immigration and Refugee Board of Canada — all the proceedings are private and in-camera under law.

This is to protect refugee claimants, their families and others, and to preserve the integrity of the refugee determination system.

In order to find out what goes on behind closed doors, the Free Press obtained consent from five claimants whose cases were heard recently. Over two days in October, we observed them pleading their cases before an adjudicator. His job was to decide whether they qualified as refugees or persons in need of protection.

While the weather was unseasonably warm and sunny in downtown Winnipeg, you couldn’t tell from the sterile, windowless boardroom on Broadway where the proceedings took place.

The first refugee claimant’s lawyer is late. A commissionaire warns the “judge” is strict and doesn’t like delays. Invited visitors hurriedly sign release forms promising not to report anything that happens in the room without permission from the claimant. The commissionaire says he likes the style of this board member, a former cop.

“He’s sharp as a tack in interrogation,” he tells a visitor.

Gordon C. McRae is a former RCMP officer from B.C. He was appointed to the Immigration and Refugee Board in 2009 by then-Immigration Minister Jason Kenney.

According to Rehaag’s study, McRae rejected 86 per cent of the 213 cases he heard in 2011.

The stocky, white-haired man wearing a dark suit and tie enters the hearing room. The commissionaire tells everyone to rise. McRae takes his seat.

A toddler in a red dress and pink tights waves goodbye to him as her dad carries her out of the room before the hearing begins. She doesn’t know it, but her and her mother’s fate rests in the hands of the unsmiling man she waved to.

“What is it you fear if you go back — if you haven’t lived there since you were five years old?” McRae asks the little girl’s mom, Sahra Abdikarim Farah, through an interpreter.

“I’m scared for my life — my father was killed in front of me. I’m scared of being raped,” Farah says. “Bigger tribes are against my tribe. I can’t protect myself.”

The woman fled the Somalian capital of Mogadishu as a child more than 20 years ago with her mom and brother and ended up in Kenya, then Syria.

“Are you at any greater risk than any other Somali woman in that country?” asks McRae.

“I’m from a small tribe — people are always harassed by other tribes. If I’m with three young girls, they’ll harm me and my three children,” says Farah, who didn’t attend school until she arrived in Canada.

She tells McRae she endured female circumcision as a child — a custom where a girl’s exterior genitals are removed and their vaginas are stitched almost shut.

The mutilation, which has no health benefit, left her with pain, infections and complications during childbirth. If it happened to her, she says, then it will happen to her daughters if they’re deported to Somalia.

McRae questions her concerns about belonging to a minority tribe.

“In Mogadishu, is there tribal warfare going on there?” he asks.

“Yes, it’s everywhere in Somalia — not just Mogadishu,” Farah replies.

McRae dismisses her concerns.

“Clan warfare did occur in more rural areas of your country — it has died down and been replaced with a religious conflict,” McRae tells her. “Do you have any knowledge of that?”

Farah says she hasn’t heard Somalia is any safer for women or members of her tribe. As far as she knows, Somalia remains a deadly place where women are mutilated.

“I’m aware of what’s happening and it’s the same for people in my situation… I have nightmares about what happened to my dad and them doing that to my daughters.”

McRae asks why she didn’t claim refugee status as soon as she moved to the United States in 2006 to join the American man she met in Syria, whom she married. She replies the immigration process, like the country and the language, was foreign to her and her husband took care of it.

When she hadn’t had any babies by 2007, he ended the marriage.

“He told me he was relieved we never had children and he was glad to see me go… He divorced me in Islam and got the papers from a mosque.”

Farah went to work at a Walmart until U.S. immigration officials showed up one day and handcuffed her. Her crime? She didn’t have a valid work permit.

“Did you ask for refugee protection?” McRae asks.

“I told them about my situation,” she says.

“What was your status in the U.S.?” he asks. “Nothing,” she says. Her ex-husband and sponsor wanted nothing to do with her.

By the time a court date for her deportation hearing was set, she’d married a Somali man and they had a daughter. They moved to Canada and had two more daughters. Her husband, Liiban Shire Ali, got a job working with autistic young people at New Directions in Winnipeg. He’s currently on parental leave to help with their new baby.

‘There is nowhere to go’

After waiting nearly a month for the Immigration and Refugee Board decision, they found out Nov. 5 her refugee claim was rejected.

“This is a dead end,” Ali says by phone on the day McRae’s decision arrived. He dreads having to tell his wife the news.

“There is nowhere to go,” he says. “I feel awful, awful, awful and hopeless — you can’t help your kids or your wife.”

His own refugee claim had already been rejected. When McRae’s ruling against his wife arrived, they had 14 days to file an appeal. Ali says they couldn’t afford the $2,500 in legal fees. “We don’t even have $500 for a down payment,” a distraught Ali said at the time.

Since then, they managed to find the money and have filed for leave to appeal with the Federal Court.

They don’t like the odds of winning, though, he says. There’s an 83 per cent chance they’ll lose.

McRae decided Farah didn’t qualify as a conventional refugee or require protection because there is a transitional government in place in Somalia.

He wrote in his decision Somalia is more peaceful since tribal conflicts “basically” ended in 2006. He wrote Al-Shabaab — a terrorist group that was responsible for the deadly attack on a mall in Kenya in September — isn’t a threat to minority clans and Farah has no legitimate reason to fear persecution there.

McRae made no mention of the woman’s concern about what would happen in Somalia to her three daughters, ages four, one and six months.

McRae’s assessment of the situation in Somali runs counter to the federal government’s. Foreign Affairs advises against all travel to Somalia. And if you are currently in Somalia, you should leave immediately.

“The security situation in Somalia is extremely volatile and the threat of domestic terrorism is high, particularly in south-central Somalia and in the capital Mogadishu,” says the department.

Farah’s husband, Ali, was incredulous when he read McRae’s decision.

“We’re Somalis and we know what’s going on there — Al-Shabaab is attacking and killing in Kenya but Somalis are killed every day,” he says. “We don’t have anyone in Somalia. What are we going to do?”

Maki Hassan Ahmed

Maki Hassan Ahmed escaped Somalia.

At his Oct. 10 hearing, Ahmed described a terrifying odyssey that took him to 13 countries before he landed safely in Canada.

The 28-year-old told refugee board adjudicator Gordon McRae he is a member of the Sufi Branch of Islam and a member of a minority tribe — both persecuted groups in Somalia.

In 2004, Ahmed and his family were attending a Sufi service held in a stadium when Al-Shabaab — “the youth” in Arabic — attacked. Shots were fired and congregation members beaten, including his father, whose hand was broken.

In 2005, their home was raided by tribal militia and robbed. When his father died, his mother opened a shop to make ends meet but was forced to pay an extortion fee to members of bigger clans.

When Al-Shabaab — the terrorist group that seized a mall in Kenya and murdered innocents in September — took over the capital Mogadishu, things got worse, Ahmed testified. In 2008, he was beaten unconscious after telling Al-Shabaab thugs the shop couldn’t afford to pay the zakat (tithe) they were demanding.

In 2009, they shot and killed his older brother, Ibrahim, a bus driver in Mogadishu and commandeered his bus.

In 2010, four Al-Shabaab gunmen returned to the shop to ask Ahmed what he had done for Islam. He said he prayed five times a day, fasted during Ramadan and supported his family. They demanded he pay a religious tax that was greater than the shop’s annual income.

In in his written submission filed to the refugee claim hearing, Ahmed said two of the men pointed guns at him. But in his oral testimony, he said only one pointed a gun at him.

McRae pounced.

“There is a contradiction in your evidence today,” McRae said and demanded an explanation — was it one gun or two?

“From what I remember, only one had a rifle pointed to my head,” Ahmed said.

They called him an infidel and were yelling at the gunman to shoot when there was an explosion outside. Ahmed fled when the terrorists ran to see what happened.

McRae wasn’t convinced.

“If these people wanted to kill you and intended on killing you, do you know why they wouldn’t do it after they ran outside?” McRae asked.

“I don’t know why they didn’t kill me,” said Ahmed.

“What makes you think Al-Shabaab would follow through on death threats now if they didn’t before?” McRae asked.

Ahmed said they did follow through — Al-Shabaab showed up at his mother’s store two days later looking for him.

“They told my mother, ‘We will bring your son’s head to you.’ ”

‘I knew I had no other chance’

With the help of his sister in Norway and an uncle working in Saudi Arabia, he was able to pay smugglers to get him out of Somalia. He fled to Kenya, where corrupt officials demanded bribes not to send him back to Somalia. He considered going to Europe, but it was too expensive and too dangerous crowding onto unseaworthy ships on the Mediterranean. He chose the longer Latin American route instead.

He went to Dubai, then Brazil, Peru, Ecuador, Colombia, Benin, Costa Rica, Nicaragua, Honduras, Guatemala and Mexico, where smugglers held him for 11 days before allowing him to cross into the United States.

“My decision was not to come to the U.S., but stay anywhere as long as my life would be safe,” Ahmed testified.

“They told my mother, ‘We will bring your son’s head to you.’ ”

-Maki Hassan Ahmed

He spent one year in a U.S. detention facility near the Mexican border and claimed asylum with no legal counsel or interpreter. He was rejected. He headed for Canada. “I knew I had no other chance.”

On March 29, 2012, a smuggler dropped him off in North Dakota. He walked all night to the border crossing at Emerson and asked Canada for refugee protection.

At his recent hearing, he was asked what would happen to him if he returned to Somalia.

Ahmed said it’s still not safe for him, even with a provisional government.

“They, themselves, get attacked every day.”

In early December, McRae’s decision arrived. He rejected the claim, saying Ahmed isn’t a person in need of protection or in danger if he’s returned to Somalia. McRae referred to “documentary evidence” Al-Shabaab has withdrawn from the area “and return only for terrorist-type attacks before retreating again.”

Since Ahmed’s hearing, Al-Shabaab has been active in Somalia, attacking police stations. Foreign Affairs has advised Canadians not to travel to Somalia. Ahmed has applied to the Federal Court for leave to appeal.

Oluyemisi Akinbinu

Oluyemisi Akinbinu came from Nigeria to work at the Selkirk Mental Health Centre after being run out of her home by an abusive husband and mother-in-law. She came to start over in Canada with hope of a better life.

“I lost everything,” Akinbinu said at her refugee protection division hearing in October. In Nigeria, she had married a doctor and they started their own clinic. She worked days at the clinic and nights at the hospital. Her husband physically abused her and she lived in fear, she testified at her hearing.

She testified to being strangled and having water thrown in her face. She said she endured the abuse because she had no one to report it to. “In my country, they always respect the men.”

After she gave birth to a daughter and not a son, her mother-in-law beat her, too, she said.

Akinbinu was pregnant with her second child when her husband took another wife and cut her out of their business without any compensation. She was eight months pregnant and had a two-year-old daughter when her mother-in-law chased her out of the home in 1996.

“She physically assaulted me,” Akinbinu said. “One of the neighbours passing by said ‘She’s pregnant — why are you hitting her? Please don’t do that.’ ”

A friend gave them a place to stay. Akinbinu gave birth to a son and her husband refused to acknowledge or support them, leaving her struggling to make ends meet, she said.

When her friend told her Canada was hiring foreign nurses, Akinbinu said she saw an opportunity to make a better life. She couldn’t afford to bring the children right away, so her parents in Nigeria cared for them. She moved to Manitoba in November 2003 and started work the next day at the Selkirk Mental Health Centre. She was given a temporary licence to practise while waiting to take the Canadian nursing exam.

At the same time, her parents in Nigeria reported her kids weren’t adjusting to the separation from their mom. Akinbinu said it was an upsetting time that took its toll on her, too. She didn’t pass the nursing exam. The hospital let her go in July 2004. She obtained a health care aide certificate and worked for private health care agencies. She tried going back to nursing school while providing live-in caregiver services in exchange for room and board but couldn’t afford it. She worked as a live-in caregiver. When her work permit wasn’t renewed in time, she was at the end of her rope.

She made a refugee claim in May 2012.

‘All I can do is pray’

Ten years after arriving in Canada, the woman is now 48 and barely keeping it together. She’s cleaning the odd house and living in a cheap bachelor suite in downtown Winnipeg. She’s not sleeping and scared she’ll be sent back to Nigeria.

Her children — now in university — and elderly parents have been displaced by Boko Haram, a terrorist group that has targeted Christian churches and schools in Nigeria.

At her hearing, Akinbinu was asked by McRae what she would face now if she returned to Nigeria.

Akinbinu said she is convinced her mother-in-law would kill her and her husband would go after her, thinking she’d returned to stake a claim in their clinic.

“I would die.”

McRae wanted to know why, after so many years of being away from Nigeria, she believes her mother-in-law still wants to kill her.

Akinbinu told him about seeing an online news site in Nigeria where a person with the same name as hers who had been victimized by a fraud was seeking information. She said she contacted the woman in Nigeria out of curiosity. Akinbinu said the woman with the same name told her she’d been contacted by a woman whom Akinbinu believes was her mother-in-law hunting her down.

In his decision, McRae said he believed Akinbinu was abused by her husband until she left their home 1996. He believed Akinbinu’s psycho-social assessment done at Mount Carmel Clinic that concluded she had experienced severe trauma from the effects of long-term emotional, physical and psychological abuse. McRae said it’s apparent she still suffers emotionally from the abuse she received in Nigeria.

“Refugee protection, however, is forward-looking,” he wrote in his decision.

“All I can do is pray.”

-Oluyemisi Akinbinu

McRae said he didn’t see any evidence of her being at risk or persecuted from the time she left her husband’s home in 1996 to when she came to Canada in 2003.

He didn’t believe Akinbinu’s story that while she was in Canada she contacted a woman with the same name in Nigeria and discovered her mother-in-law was tracking her down to harm her.

McRae acknowledged massacres have taken place in Nigeria over ethnic, religious and tribal conflicts but didn’t believe Akinbinu was at risk of attack by Boko Haram if she returned.

“She submitted no evidence that she had ever been targeted because of her religion,” he wrote.

Now the emotionally vulnerable woman recruited to work at a Manitoba mental hospital a decade ago is suffering more anxiety as she awaits deportation. She’s applied to the Federal Court for leave to appeal.

“All I can do is pray.”

Eritrean sisters

Two sisters from Eritrea claimed refugee status in Canada, saying they face prison or death if they’re sent back.

They were accused of being anti-government agents while visiting their dying sister in Canada and had all their property in Eritrea confiscated.

Fearing retribution, the sisters, ages 59 and 60, agreed to share their stories if their names are not published. They owned a bar in Eritrea and had a cousin look after it when they came to Canada in October 2009 to visit their terminally ill sister. Their brother-in-law, a medical doctor, made the arrangements for them to visit for a year. They had their visas extended so they could be at their sister’s bedside when she died in November 2010. They had their visas extended again to have time to grieve with family in Canada.

They stayed with relatives in Winnipeg and went to a conference with an Eritrean friend visiting from Germany in September 2011. The conference was about human rights abuses in Eritrea and made the two sisters uncomfortable. People at the conference were taking photos and videos of the attendees and the sisters later learned they were agents of the Eritrean government.

Two months later, family members in Eritrea told them government agents were asking if they’d returned from Canada yet. Two weeks later, the agents returned and confiscated all the sisters’ belongings and property — including their bar. Family warned them they were in trouble — accused of being undercover agents for the Eritrean opposition — and faced prison or death if they returned to Eritrea. They made refugee claims on June 28, 2012.

At their hearing on Oct. 10, adjudicator McRae grilled them through an interpreter on the conference and whether or not they attended it.

They told McRae they expected it was going to be more of a social event — that Eritrean people would be there who spoke their language.

McRae asked why they didn’t have witness testimony from the German-Eritrean friend who took them to the Winnipeg event. They said they didn’t have her contact information. He questioned them about details on the conference agenda and whether they saw a video of Eritrea’s president presented at the meeting. The sister’s said they didn’t — they left within the first hour.

Five weeks later in his decision, McRae said he didn’t believe they attended and therefore could not have been identified and targeted by the Eritrean government agents.

Even if they had attended, McRae said he couldn’t believe the Eritrean government would risk its relationship with the Government of Canada “to target two elderly women” with no political motives.

(In 2010, Canada adopted a UN Security Council resolution prohibiting anyone from providing money to Eritrea for military activities. The money, used to fund extremist groups destabilizing the Horn of Africa region, is in the form of a two per cent income tax levied on Eritreans in North America, Europe, east Africa and the Middle East. Local government agents direct Eritreans where to send the income tax money that supports the regime they fled. They squeeze expats who still have ties to Eritrea — those with loved ones who may need a visa one day, for example.)

McRae said the sisters’ claim they lost their bar, all their possessions, and now are in danger in Eritrea for attending an anti-government meeting was “implausible.”

He didn’t consider media reports entered as evidence that the Eritrean government has local agents keeping tabs on critics of the repressive regime. Eritrean Winnipeggers who’ve had family members jailed in Eritrea after speaking out here know they better pay up and shut up.

After coming to Canada to visit their dying sister, the two women are returning to Eritrea, where they now have nothing but a sense of dread. They’ve applied to the Federal Court for leave to appeal.

Idil Timayare

In the weeks after hearing the cases in October, Gordon C. McRae issued his decisions. And by last week, they all knew their fate: Their time in Winnipeg is nearing the end because all their cases had been rejected — unless their applications to the Federal Court for leave to appeal are granted.

McRae was in Winnipeg in April hearing the case of Idil Timayare, a Somali single mom raising six children under age 13 in the North End.

She fled Somalia as a child with her parents, but the family scattered when a fire hit their Kenya refugee camp.

Her parents were approved as refugees and received assistance to come to Winnipeg 10 years ago.

Timayare, 15, ended up in South Africa, where tens of thousands of refugees like her wore out their welcome long ago.

She had six children when locals turned on Somalis, and her husband was beaten and fled.

She and her children were reunited with her parents two years ago and claimed refugee status here. When it was rejected by McRae, her shocked parents hired human rights lawyer David Matas to ask the Federal Court to review the decision. It refused and isn’t required to provide any explanation.

“She’s nearing the end of the road,” says lawyer Bashir Khan, who represented her at her Immigration and Refugee Board hearing.

Timayare and her kids are waiting for word they’ll have to go back to Somalia — even though the federal government warns Canadians not to go there.

She’s filing a last-ditch application to stay in Canada on humanitarian and compassionate grounds, but that has a less than five per cent chance of succeeding, says Khan.

Those odds may come as a surprise to Canadians, Denton says.

“People who are not familiar with immigration and who have a general impression of Canada as a kind and accepting country have trouble relating to another reality, which has Canada very often acting in ways that are cruel,” he says.

“Humanitarian and compassionate cases are not generally accepted.”

‘The system is less and less fair’

The federal government began to implement changes into how cases are handled last December after the Protecting Canada’s Immigration System Act was passed, but some lawyers, advocates and academics aren’t optimistic it will fix the systemic problems.

“It will be interesting to see whether the new system, which uses civil servants as first-instance decision-makers (instead of governor-in-council appointees), has improved consistency across adjudicators — but it will be several months before we have data available about this,” Rehaag says.

However, Janet Dench, executive director of the Canadian Council for Refugees in Montreal, says refugee-protection-determination-acceptance rates have never been lower.

“The stats for January to June show the lowest acceptance rate in the history of the (IRB) board,” she says.

NDP immigration critic Lysane Blanchette-Lamothe (Pierrefonds—Dollard) says the federal government has changed the rules to make Canada more a haven for the rich than for refugees.

“The stats for January to June show the lowest acceptance rate in the history of the (IRB) board.”

– Janet Dench, executive director of the Canadian Council for Refugees

“We are concerned the system is less and less fair for the individual,” she says.

“It’s directly in the party line of the Conservatives to show they’re strong on the economy and talk about refugees as people who take advantage of the generosity of Canada… They seem to forget the humanitarian history of Canada and how Canada benefits from welcoming refugees and immigrants… The humanitarian side is important.”

The new legislation includes a new refugee appeal process, but it’s too early to tell if it’s addressing concerns about fairness and consistency, Rehaag says. The appeals division restricts who can ask for an appeal from the IRB.

And across Canada, there are questions about who ended up being appointed to the appeals division — some were IRB members with low acceptance rates who had a high number of their rulings overturned, says Dench.

The Federal Court, in response to the Luck of the Draw study, has held meetings to address divergent views on when leave should be granted to allow an appeal.

“We’re welcoming input to what, if anything, we can do about this,” Federal Court Chief Justice James Crampton said earlier this fall on Lawyers Weekly TV. Crampton has a track record of granting two per cent of requests for leave to appeal.

Rehaag says in an interview it is too soon to tell if those discussions are making a difference.

“I hope to do a revised study starting in the new year that will help answer that question,” he says.

carol.sanders@freepress.mb.ca