Representation for Immigrants and Refugee Claimants
9. Quality of representation
It is difficult to deal with the issue of access to representation in isolation from the issue of quality of representation. In the context of the representation needs of immigrants and refugee claimants, as in many other areas, it is difficult to speak of quality in the abstract. The real underlying issue is: What sort of representation do individual immigrants and refugee claimants require at different stages in the various legal and administrative processes in which they are involved? Or, to phrase the question slightly differently: What are the qualities that one would expect of a person competent to provide required representation and assistance at each stage? The interviews with respondents attempted to get at these issues in a number of ways. In the first instance, respondents were asked what sort of assistance and/or representation was required for each of the various processes under review. Respondents were also asked to describe the qualities that they saw as necessary for a person who is providing assistance and/or representation in each of these processes. (Responses to these questions dealing with the need for representation are summarized in Section 3.)
Many respondents chose to answer these questions by naming a particular type of representative, for example a lawyer, a paralegal, or a settlement worker, rather than by describing the set of qualities or qualifications that the individual should have. Other respondents provided fairly detailed descriptions of the desired qualities. In the course of the interviews, respondents also alluded to specific problems with respect to quality of representation being provided to immigrants and refugee claimants. These responses do not lend themselves to simplified summary reporting, but an overview of the comments received does provide a useful way to examine issues related to quality of representation.
The starting point for any discussion of representation needs of immigrants and refugee claimants is that these persons are, by definition, newcomers to Canada. Well-educated immigrants from developed, industrialized democracies where the rule of law is widely respected can generally adapt relatively easily, especially if they also speak one of Canada's official languages. Those who are less educated, who speak neither official language, and who come from countries where the rule of law is not well established, face enormous challenges in understanding and participating effectively in the complex legal proceedings that are an integral part of the immigration and the refugee determination process. Refugee claimants are much more likely than regular immigrants to be included in the second group. Also, immigrants who arrive in Canada as part of a planned and pre-approved move are less likely than refugee claimants to encounter legal problems relating to their status in Canada. For these reasons, among others, refugee claimants, as a group, have much more extensive need for representation and assistance than do other immigrants.
At the initial stage of their odyssey, when refugee claimants first arrive in Canada, their most basic need is for settlement assistance to access housing, language training and other amenities. Respondents were generally agreed that this sort of assistance can effectively be provided by workers associated with NGOs, either as paid staff or as volunteers. The key qualities required of those who provide such assistance are accurate knowledge about the matters on which they give advice, good interpersonal skills, cross-cultural sensitivity and, ideally, the ability to communicate with clients in their own language.
As noted above, most claimants have little if any understanding of the legal processes in which they are involved. They require guidance and reliable information on how to conduct themselves in the Canadian legal system, to avoid creating problems that may come back to haunt them. Respondents differed in their assessment of what sorts of qualifications are required to provide quality or knowledgeable representation appropriate to address this need.
Some respondents were of the view that it is essential that claimants have access to professional legal advice as early as possible in the process. Others suggested that settlement workers and volunteers affiliated with NGOs are well placed to provide any required assistance and/or representation in the early stages, particularly with regard to admissibility and eligibility interviews. These respondents felt that legal representation is only required for refugee determination hearings and for cases in other proceedings where complex legal issues must be decided.
The view that full legal representation is required from the very beginning of the process was most forcefully stated by a lawyer from Vancouver, who felt strongly that what happens in the initial stages can make or break a case. Since claimants are ill-informed about the process, this lawyer believed that it is imperative that they have access to qualified legal counsel from the outset. He expressed grave concern about the possible harm done to claimants who act on inaccurate or inappropriate advice from well-meaning NGO personnel who do not fully understand the legal issues involved.
While many other service provider respondents felt that claimants need assistance as soon as they present their claim, they did not go as far as this lawyer and insist on full legal representation from the outset. One settlement worker, who has often found herself providing these services because of problems clients have had in accessing other representation, indicated that she felt uncomfortable giving advice about legal issues. In her opinion, a lawyer or trained paralegal has to be involved as a representative from the earliest stages of the process. However, this respondent did not think that clients would normally require anyone in an active representative role at admissibility interviews, but she did feel that they need access to legal advice from a competent, qualified person.
Another respondent who is actively involved in co-ordinating services for immigrants and refugee claimants noted:
Where no legal representation is available, it is better to have some assistance than none. But it is not the role of settlement workers to provide legal advice. Persons without legal training have a role to play in communication. They can inform clients about the process and about progress on their case. And they can refer clients to qualified legal advice.
At the opposite end of the spectrum, a volunteer affiliated with an NGO in Ontario, who works extensively with refugee claimants, suggested that all that is required for the initial interviews at CIC is a competent interpreter and basic advice about the process. He felt that involvement of persons with legal training is only required in a supervisory capacity at the case preparation stage, and is only required for hearings in complex cases. This view was shared by many of the CIC and IRB respondents, but few other service providers were of the same mind. The preferred view among most service providers and claimants was that competent legal advice is required at both the case preparation and the hearing stage. For these respondents, the capacity to provide sound legal advice is a key component of knowledgeable representation at all stages of the process.
Overall, there was a clear sense among respondents that the closer one gets to proceedings in which decisions are being made that have an impact on the status and rights of the person concerned, the more important it is that representation include the sort of expertise that a lawyer can bring to bear. A majority of respondents favoured an integrated approach in which claimants have access to competent legal advice throughout the process, but opinion was divided on whether they need to be represented by a lawyer at every stage. The desire for a more integrated approach was summed up well by a respondent who works at the refugee law clinic in Vancouver. This respondent suggested that, to ensure knowledgeable representation, claimants
"need a person who is very familiar with the whole process and with the legal definition, and, ideally, is integrated with a legal representative." While there was no clear consensus among respondents as to the requisite balance between legal and non-legal components in knowledgeable representation for refugee claimants, this integrated approach comes closest to capturing the view held by most respondents.
Specific attributes noted by respondents as qualities required to provide knowledgeable representation include the following:
- Solid understanding of the law and procedures applicable to the particular procedures for which assistance and/or representation is being provided. (This includes a solid understanding of the basic principles of administrative law and, in the case of persons representing refugee claimants, understanding of the basic principles of international human rights law.)
- A capacity to empathize with clients without becoming overly involved emotionally and without personally taking on the burden of the clients' plight.
- Good interpersonal skills, including the ability to put traumatized and disoriented clients at ease so they can effectively tell their story.
- Willingness to spend time with clients to properly prepare their case.
- Good interviewing skills, including the ability to confront clients with the tough questions they are likely to be asked at their hearing.
- The capacity to communicate and work with people from diverse cultural and linguistic backgrounds, and to deal with clients with special material and psychological needs arising out of their experience of severe mistreatment or subjugation.
- The capacity to remain non-judgmental and to comprehend situations that may appear to be implausible or absurd in the Canadian context, but may be possible in the country where they allegedly arose.
- The ability to focus on relevant points, to understand the basis of the client's case and to present that case clearly and effectively.
- The ability to stand up for clients and to represent their interest in situations that at times may be hostile.
- The ability to research thoroughly, to handle complex and unfamiliar information, and to remain current on changing situations in countries of origin.
Some respondents went beyond listing specific attributes of the sort noted above and stipulated that, in the final analysis, the representative must be a qualified, practising lawyer. Some went even further and insisted that, to provide effective representation in this area, lawyers must be specialized in immigration and refugee law and have particular expertise with respect to the countries from which their clients originate. Other respondents quite explicitly stated that it is not professional qualification as a lawyer that is most important. These respondents noted that there are competent non-lawyers who provide more knowledgeable and more effective representation than is being provided by many lawyers.
While it is true that many non-lawyers possess the sort of skills or attributes listed by respondents, these skills are more likely to be found in people who have formal legal training. This is especially so with regard to substantive legal knowledge and advocacy skills. A substantial majority of respondents indicated a strong preference for legal representation, at least at hearings. This is in large measure a function of the weight they attributed to legal aspects of the processes under review. However, another factor pushing many respondents to favour involvement by lawyers was their sense of the need to hold representatives accountable. Even respondents who saw a major role for consultants and paralegals expressed grave concerns about the inadequate representation being provided by many unqualified immigration consultants. For these respondents, the lack of effective regulation and certification of competency of the non-lawyers who are providing representation is a major problem. Thus, while accountability of representatives is not a feature that one associates with "knowledgeable representation," it is an important component in ensuring the quality of representation.
The sort of accountability sought by the respondents is that which comes from certification of competency and from regulation of the profession. The focus of their concern is accountability to the body that regulates the profession, and ultimately to the clients, for the quality of service delivered. In the context of legal aid, there is also an ongoing debate about the relative merits of staff versus judicare models of service delivery. Delivery of services through the staff model provides a level of accountability to the legal aid authority that might be seen as an alternative way to achieve the same objective. However, critics of the staff-based model have concerns that it can lead to deterioration in quality of service if the legal aid authority assigns an unrealistically high volume of cases to the staff representatives in order to keep costs down. From the perspective of these critics, the limitation on choice of counsel that is inherent in the staff-based model may ultimately diminish accountability.
There was no consensus among respondents on the relative merits of the staff and judicare models of service delivery. The overall assessment of the quality of service currently being provided to immigrants by lawyers and paralegals who work at staff-based clinics was very favourable. But many respondents, particularly among the lawyers who were interviewed, expressed doubts about the relative cost-effectiveness of the clinic model, and had concerns about limitations on choice of counsel that would likely ensue if all services were provided through clinics.
This raises the question of what role can be played by NGO personnel, both paid staff and volunteers, in the provision of "knowledgeable representation" for immigrants and refugee claimants. All respondents acknowledged the importance of the work done by NGO settlement workers and volunteers in providing the basic settlement services. Many also suggested that these individuals could also provide adequate advice and representation for refugee claimants involved in admissibility and eligibility interviews, and possibly even to assist in preparing their PIFs. Others, as already noted, took strong exception to this proposition, insisting that familiarity with legal issues involved in these processes is an essential ingredient of quality representation.
Most respondents spoke highly of the contribution being made by paid staff at NGOs, particularly settlement workers and case counsellors. Respondents noted that these workers generally have a good sense of the processes for which they provide advice, and that they recognize their limitations and know when to refer clients to others for necessary legal advice. However, opinion was more divided on the role played by non-professional NGO volunteers. While acknowledging that most of these volunteers mean well, some respondents expressed concern that they often misinform clients and give them false hope. These respondents suggested that volunteers with no legal training should not be involved at all with providing representation or assistance in relation to legal proceedings. Rather, untrained, non-professional volunteers should limit themselves to providing support in relation to settlement issues.
Taken in context, these comments about the limited role for volunteers referred only to volunteers without any legal training. Other respondents reported that volunteers with basic legal training play a vital role in the delivery of quality representation. For example, the Halifax Refugee Clinic relies almost completely on volunteers to provide representation to refugee claimants in that city. Some of these are lawyers working on a voluntary basis. Others are law students. But a significant number are students from other disciplines, or volunteers from the community who have had no prior legal training. The clinic provides all volunteers with a short orientation course on legal issues relating to refugee determination, and all volunteers work loosely under the supervision of a lawyer. Specifically, a lawyer at the clinic reviews all PIFs before they are filed and the lawyer is available to provide advice to volunteers when required. Also, a lawyer and an experienced paralegal from the clinic monitor hearings where volunteers serve as counsel and they provide feedback on the volunteers' performance.
Respondents from the Halifax Refugee Clinic felt that the volunteers there are providing knowledgeable and effective representation. The assessment from IRB respondents who have dealt with hearings in Halifax was more mixed. They acknowledged that the work being done by the volunteer counsel from the clinic is very important, particularly considering that legal aid is not available for immigration and refugee matters in Nova Scotia. However, the IRB respondents felt that volunteer counsel who have only limited legal training are unable to provide effective representation in complex cases. It is not the place of this study to pass judgment on the quality of work being done by these volunteers. A systematic evaluation of the quality of representation provided by volunteers at the clinic is required to assess the capacity of volunteers with basic legal training to provide knowledgeable representation for immigrants and refugee claimants.
Views on the issue of what is required to provide knowledgeable representation were very much influenced by people's perspectives on the extent to which factual and legal analysis are at play in the determination of refugee claims. One very experienced RPD member expressed the view that the legal issues in most of the cases that he sees are very straightforward, and that most decisions turn heavily on the credibility of the claimants' stories. However, this member noted that the cases that do raise complex legal issues are very challenging, and definitely require extensive training and experience in law to sort through. The problem, according to this respondent, is to identify in advance which cases are fact-driven and which are likely to engage challenging legal issues. This suggests that a critical factor in knowledgeable representation is the representative's ability to recognize his or her own limitations, and to know when to call in help from others with more experience and expertise.
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