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Representation for Immigrants and Refugee Claimants
1. Introduction
This study has been undertaken to examine the implications of the presence and/or the absence of different forms of representation for immigrants and refugee claimants in the various legal proceedings in which they become involved. Access to representation in immigration and refugee proceedings is of direct relevance to the Department of Justice's mission of ensuring an "accessible, efficient and fair system of justice"
and in upholding Canada's international obligations (Department of Justice, 2000). At a personal level, it is an issue of immediate and direct concern for immigrants and refugee claimants themselves. It is also a matter of significant concern for persons involved in the management and conduct of the various proceedings involving immigrants and refugee claimants, as well as for those responsible for the operation of legal aid programs across Canada.
There are a number of legal and administrative proceedings mandated by provisions of the Immigration and Refugee Protection Act (IRPA) that affect immigrants and refugee claimants in Canada1 . On the immigration side, these include
- admissibility interviews conducted by immigration officers;
- detention review hearings conducted by members of the Immigration Division at the Immigration and Refugee Board (IRB);
- immigration inquiries conducted by members of the Immigration Division at the IRB;
- administrative proceedings to obtain permanent resident status;
- appeals against deportation by permanent residents and by Convention refugees; and
- sponsorship appeals by permanent residents.
Additional proceedings involving refugee claimants include
- eligibility interviews conducted by immigration officers in relation to refugee claims;
- refugee protection hearings conducted by members of the Refugee Protection Division (RPD) at the IRB; and
- various post-determination reviews available to unsuccessful refugee claimants.
Decisions made by the IRB and certain decisions made by officials at Citizenship and Immigration Canada (CIC) are also subject to judicial review in the Federal Court of Canada2 .
Issues relating to representation for all proceedings affecting immigrants and refugee claimants are relevant to this inquiry. However, the fact that more than 90 percent of legal aid expenditures in Canada devoted to immigration and refugee matters is directed to providing representation for refugee claimants cannot be ignored (Frecker, 2002: 1)3. Bearing this in mind, the principal focus of this study is on representation issues relating to refugee claimants. Representation of immigrants who are not also refugee claimants is addressed in the study only to the extent that respondents have identified separate issues relating specifically to this group.
1.1 Methodology
In an effort to get a clearer understanding of what is happening in relation to those proceedings in actual practice, structured interviews of one to two hours duration were conducted with 140 individuals from across Canada who have direct experience in immigration and refugee proceedings. The interviews were conducted in May, June and July of 2002. Interviews with the respondents from Montreal, Toronto, Fort Erie, Niagara Falls, Vancouver, Ottawa, Saint John and St. John's were conducted in person, rather than by phone. Respondents from Halifax, Saskatoon, Calgary and Edmonton were interviewed by phone. One of the respondents from Winnipeg was interviewed in person and the other was interviewed by phone.
Interviews were conducted on the understanding that, unless respondents expressly consented to having comments attributed to them, their comments would be reported anonymously with only a general description of the respondent where necessary to place the comment in context. This has made the reporting of the respondents' comments more detached than would have been the case if each comment were directly attributed. But this limitation was considered necessary to ensure that respondents did not feel constrained in expressing their opinions in the interviews.
On June 28, 2002 the Immigration Act was replaced by the Immigration and Refugee Protection Act (IRPA). When the interviews were conducted, the respondents did not have any significant experience with the new procedures established under the IRPA. The questions posed in the interviews were therefore framed with reference to proceedings as they existed under the Immigration Act. As a consequence of this limitation in scope of the questions, respondents were not specifically asked to comment on the need for representation in the new pre-removal risk assessment (PRRA) process established under the IRPA. Respondents were also not asked to comment on implications that may flow from establishment of the new Refugee Appeal Division (RAD). Both of these developments have potentially profound implications with regard to the representation needs of refugee claimants, but these implications have not been systematically addressed in this study. The PRRA process has been in operation since June 28, 2002. However, implementation of the provisions in the IRPA relating to the RAD has been delayed indefinitely.
All six members of the research team are former members of the Convention Refugee Determination Division (CRDD), all but one of them having served in senior management positions at the IRB for more than five years. The two members of the research team from Montreal have also served as members of the Immigration Appeal Division of the IRB.
The respondents fell roughly into six categories.
- Individual immigrants and refugee claimants: Twenty-two interviews were conducted with individuals who had direct personal experience as the subjects of different proceedings affecting immigrants and refugee claimants. Twenty-one of the respondents were refugee claimants. Seventeen of these had been interviewed by immigration officers when they made their refugee claims and four were found to be eligible to have their claims determined by the CRDD after completing a written questionnaire. Two of the refugee claimants had also been detained and therefore were also able to comment on their experience with detention review proceedings. One of the refugee claimants, who had also been the subject of a removal appeal, was interviewed with respect to both the refugee determination and the appeal proceedings. The twenty-second respondent was an appellant only. Both respondents who had experience in appeal proceedings and eight of the refugee claimants had also been the subjects of immigration inquiries before the Adjudication Division of the IRB. Only three of the refugee claimants had direct personal experience with post-determination proceedings.
Interviews with these individual respondents were focussed on eliciting information about their personal experience in the various proceedings, their level of knowledge about legal and procedural requirements relating to these proceedings, and their experience with regard to representation for these proceedings. The questions asked in these interviews are reproduced in Appendix 1.
- Service providers: Interviews were conducted with 23 lawyers, eight paralegals, four immigration consultants and 16 representatives from non-government organizations that serve immigrants and refugee claimants across Canada. The UNHCR legal officers in Toronto, Ottawa and Montreal were also interviewed. In the report that follows, their responses are included with those from the other lawyers.
Questions addressed to service providers were focussed on eliciting respondents' opinions regarding the need for representation in various proceedings and their assessment of the level of knowledge that the persons who are the subject of these proceedings have about legal and procedural requirements relating to the proceedings. Service providers were also asked to provide assessments regarding access to representation in relation to the various proceedings and regarding the quality of representation services currently available to immigrants and refugee claimants. The questions addressed to service provider respondents are reproduced in Appendix 2.
- Hearing participants: Personnel from CIC and from the IRB who participate in an official capacity at hearings and interviews involving immigrants and refugee claimants were asked questions similar to those addressed to service providers. Interviews with hearing participants also attempted to elicit the respondents' opinions regarding the impact that presence or absence of representation has on the outcome of proceedings and on the fairness of the process. The 13 hearing participants from CIC included immigration officers and senior immigration officers who deal with immigrants and refugee claimants at ports of entry and at inland offices, as well as officers who represent the Minister in various proceedings before the IRB. The 17 hearing participants from the IRB included refugee claim officers as well as members from the CRDD, the Immigration Appeal Division (IAD) and the Adjudication Division. This group also included two deputy registrars who
deal extensively with parties who appear before the IAD and the Adjudication Division of the IRB. The questions directed to hearing participants are reproduced in Appendix 3.
- CIC and IRB managers: Separate interviews were conducted with a cross-section of CIC and IRB managers. These interviews were directed primarily to eliciting the managers' views with respect to what impact the presence or absence of representation has on CIC operations. The respondents were also asked to provide their assessments with regard to the quality of representation services currently available to immigrants and refugee claimants. The eight respondents in this group included CIC managers from Halifax, Winnipeg, Vancouver, Toronto, Niagara Falls, Lacolle, and Montreal. Questions addressed to CIC managers are reproduced in Appendix 4.
- IRB managers: Similar interviews, directed to eliciting information about the impact of representation and assessments regarding the quality of representation services currently available to immigrants and refugee claimants were conducted with 18 IRB managers. This group included the regional directors in Montreal and Vancouver, operations service managers in Toronto, and managers of CRDD and the IAD in Montreal, Toronto and Vancouver. At the request of the CRDD Assistant Deputy Chairperson in Toronto, CRDD co-ordinating members from Toronto were interviewed in their role as managers rather than as hearing participants, which accounts for the apparent over-representation of IRB managers in the respondent groupings. The interviews with the co-ordinating members were extended to include questions addressed to them in their capacity as hearing participants. Questions addressed to IRB managers are reproduced in Appendix 5.
- Legal aid managers: Legal aid managers in British Columbia, Manitoba and Quebec, and program level personnel from Legal Aid Ontario, the Legal Aid Society of Alberta and the Legal Aid Commission of Newfoundland and Labrador were interviewed to obtain information about legal aid program operations and coverage available to immigrants and refugee claimants in these provinces. The information obtained from these interviews is of a fundamentally different nature than the information obtained from other respondents. Therefore, it is not included in any of the data tables presented in this report. However, relevant information obtained from these interviews is presented throughout the report. The questions addressed to legal aid managers are reproduced in Appendix 6.
The principal objective of the study was to canvass the opinions of key informants who have extensive personal knowledge of the proceedings affecting immigrants and refugee claimants. A deliberate effort was made to interview a diverse group of respondents who have a broad range of experience with the various proceedings affecting immigrants and refugee claimants. The respondents interviewed were chosen because of the perspectives and insights each of them has with respect to the issues under review by reason of their knowledge of proceedings affecting immigrants and refugee claimants and their experience within the system. The interviews were not intended or designed to gather a statistically representative sample of views. Given the diversity of groups to be canvassed, and the limited timeframe and budget for carrying out the study, it was not feasible to construct a statistically representative sample to address the issues under review. As a result, the respondent groups are not statistically representative of the larger groups of which they form part. However, given the place of the key informants within the immigration system, their responses do articulate significant perspectives that inform the debate about the representation needs of immigrants and refugee claimants.
Separate but overlapping sets of questions were developed for respondents in each group. Responses from these interviews have been analyzed to provide a composite snapshot from the perspective of the various respondents on six key issues:
- The need that the immigrants and refugee claimants have for assistance and/or representation in the administrative and legal proceedings in which they are involved;
- The knowledge and sophistication that immigrants and refugee claimants bring to these proceedings;
- The skill and knowledge required to provide fair and effective representation for immigrants and refugee claimants;
- The nature and quality of assistance and representation available to immigrants and refugee claimants;
- The role played by the various categories of service providers who assist and represent immigrants and refugee claimants; and
- The impact that presence or absence of representation has on fairness and efficiency of the processes in which immigrants and refugee claimants are involved.
The responses have been examined to ascertain whether they disclose any differences in perspective among different categories of respondents and any distinct regional concerns with respect to availability of assistance and representation. The patterns noted in the analysis that follows reflect the shared views of the individual respondents, but they do not necessarily reflect the views of the larger groups (e.g., CIC personnel, IRB personnel, NGO workers, etc.) with which the individual respondents are associated. Considering the non-random way in which respondents were selected, caution should be exercised when interpreting the data tables in which their responses are summarized in this report.
While the formal questions asked were quite structured, the actual interviews were open-ended, with respondents taking individual questions as a cue to speak broadly about the particular issues under review. In many instances, responses to one question anticipated subsequent questions and the interviewers had to adapt the interviews accordingly.
The categorization of the responses set out in the various tables in this report is based on a close reading of the notes from each interview. Since the responses in many cases were not direct answers to specific questions, a degree of subjective judgment has had to be exercised in categorizing individual responses. As a result, the tabulation of individual responses on particular issues may not exactly reflect the positions of each of the respondents. However, the authors are confident that the overall range and distribution of opinions as related by the respondents is accurately reflected in the report.
Consistent with the fact that over 90 percent of legal aid spending on immigration and refugee matters is directed to providing representation for refugee claimants, the respondents interviewed for the study focussed most of their comments on issues relating to representation for refugee claimants, as distinct from the immigrant population in general. Accordingly, the representation needs of refugee claimants form the predominant focus of this report. Representation needs in relation to immigration inquiries, immigration appeals and detention reviews involving immigrants who are not refugee claimants are addressed only incidentally.
