Representation for Immigrants and Refugee Claimants
3. Need for representation (continued)
3.2 Refugee determination proceedings
Respondents were asked whether, in their opinion, refugee claimants need any form of assistance or representation for refugee status determination proceedings conducted by the IRB. Respondents were then asked to indicate what sort of assistance or representation refugee claimants need at three different stages in the process at the IRB, namely:
- to prepare their refugee claim, including drafting of the Personal Information Form (PIF) and preparing for the RPD hearing where the claim is determined;
- with respect to the expedited process, where claimants with apparently well-founded claims are interviewed by an IRB staff member (a refugee claim officer under the Immigration Act, a protection officer under the IRPA) to ascertain whether the claimant is suitable to be accepted without a hearing; and
- at the determination hearing itself.
A summary of the responses received is provided below.
3.2.1 Preparation for refugee hearings
Eighty-six respondents commented on refugee claimants' need for assistance in preparing their PIFs and getting ready for the hearing into their claim. No one suggested that claimants do not require any assistance or representation to prepare for their hearings. See Table 2.
Sixty-two of the 86 respondents who commented felt that because of the potentially complex legal issues involved and the need to make sure that all critical points are addressed in the PIF, a lawyer has to be involved at the case preparation stage, at least in a supervisory capacity. Twenty-nine of these respondents felt that much of the preparation could be handled by a trained paralegal under a lawyer's supervision, but many of these insisted that a lawyer must assume final responsibility for drafting the narrative setting out the details of the claim. Thirty-three respondents felt that claim preparation should be handled entirely by lawyers.
Many of the respondents felt strongly that the person who is representing the claimant at the hearing must also be actively involved in preparing the claimant for the hearing. They suggest that this early involvement is essential to establish trust between the representative and the claimant, and to ensure that the claimant understands and will be ready to answer clearly and truthfully the type of questions that likely will be asked. Those respondents who believed that representatives at refugee hearings must be lawyers felt equally strongly that lawyers must be actively involved in case preparation.
Twenty-four respondents indicated that a trained, experienced paralegal or immigration consultant could handle case preparation, without any stipulation that the person be supervised by a lawyer. It is not clear what level of training these respondents have in mind. The emphasis appears to be more on familiarity with the refugee determination process than on legal training in any formal sense. For some of these respondents, experienced caseworkers at NGOs would be suitable for helping claimants draft their PIF and preparing claimants for their hearing. Others felt that some explicit training on the legal principles involved in refugee determination is required.
Among the 18 refugee claimant respondents who commented on their case preparation needs, 14 indicated a clear preference for having a lawyer directly involved. Three of these had very negative experiences with immigration consultants and had to engage lawyers to straighten out their problems. Two others who did most of their case preparation with supervised paralegals expressed frustration about the limited access they had to their lawyer prior to the hearing. Most of the claimants spoke extremely highly of the support they received from NGOs, but felt they needed assistance from a lawyer to complete their pre-hearing preparation. They were encouraged in this view by the supporting NGOs, which encouraged and helped them secure legal representation.
Of the four claimants who felt that support from a paralegal or an experienced person from an NGO was adequate for case preparation, two suggested that the help they had received from NGOs was superior to what they had received from their lawyer. One of these claimants had dealt only with her lawyer's assistant and had not spoken directly with her lawyer up to the time of the interview. As a result, she was very frustrated and felt that she was receiving more effective support from the NGO that was assisting her. The other claimant found his lawyer had been unprofessional. He believed that his claim was accepted despite the representation that the lawyer provided, rather than because of anything the lawyer had done on his behalf.
The responses received from claimants regarding the respective roles of lawyers and paralegals cannot be viewed as representative of perspectives from the claimant population at large. The number of claimants interviewed for the study was quite small (21 principal claimants, 26 claimants in all) and their responses are directly conditioned by their own personal experience. Only two of the claimants had direct experience with supervised paralegals who specialize in assisting claimants with case preparation. One claimant, who was denied legal aid coverage, was receiving assistance from a settlement worker at an NGO. All of the other claimants reported that their lawyers had handled all of the interviews and had drafted their PIFs. Fifteen of the claimants stated that NGOs had been very supportive, but only the one unrepresented claimant indicated that anyone from an NGO had been directly involved in preparing her claim.
3.2.2 Refugee hearings
There is virtual unanimity among respondents in all groups that refugee claimants need to have some form of representation at their refugee hearing. Of the 100 respondents who expressed an opinion on this issue, only one felt that representation is not required at all, while two respondents felt it might not be necessary in relatively simple cases, and one felt that representation is needed only if the claimant is not well educated.
Respondents put forward a variety of reasons in support of the proposition that representation at hearings is essential. Among them, they noted that the process is very court-like and legalistic, despite efforts to make it informal. To be accepted as Convention refugees, claimants are required to prove that they had a well-founded fear of persecution based on one of the five grounds listed in the 1951 United Nations Convention relating to the Status of Refugees. Under the IRPA these grounds have been extended to include risk of torture within the meaning of Article 1 of the Convention against Torture, and risk to life or risk of cruel and unusual treatment or punishment (IRPA, s. 97). These grounds are subject to extensive judicial interpretation. Therefore, knowledge of the applicable jurisprudence, principles of international human rights law, and basic principles of administrative law is required to present a claim effectively. Claimants are required to give oral evidence under oath and are subject to being questioned intensively by a refugee protection officer employed by the IRB. In cases where the Minister chooses to intervene, claimants are also subject to being cross-examined by Minister's counsel from CIC. Most claimants are unfamiliar with legal matters and court-like proceedings, and are unable to function in either French or English.
Bearing these considerations in mind, most respondents were of the view that for refugee hearings, full legal representation by a lawyer is required. But opinion on this was not unanimous. See Table 3.
Twenty-nine respondents indicated that a trained paralegal could provide adequate representation. Thirteen of the 29 stipulated that any paralegal representing a claimant at a hearing should be supervised by a lawyer to ensure that significant legal issues are not overlooked. Six respondents stipulated that paralegals and other non-lawyers should be limited to straightforward cases that do not involve complex legal issues. Respondents who endorsed representation at hearings by non-lawyers pointed out that good paralegals and consultants provide better representation than incompetent lawyers. They stressed that personal competency rather than formal professional standing is the key consideration. But the clear majority of respondents who expressed any opinion (74 of 104) were strongly of the view that claimants should be represented by a lawyer at refugee hearings.
Required for Refugee Hearings
Interestingly, of the eight paralegals who commented on the type of representation required for refugee hearings, four felt strongly that it should be a lawyer who represents claimants at hearings. Two felt that lawyers should handle complex cases, but they thought that, with appropriate supervision and experience, paralegals could handle routine cases. Two others felt that paralegals could handle most cases with appropriate supervision and input from lawyers. Two of the paralegals have had extensive experience representing claimants in hearings and they indicated that they sometimes have difficulty coping with the legal issues that arise. Of the four consultants who expressed an opinion on this issue, three felt that they could handle most cases without difficulty, while one indicated that he limited himself to expedited and straightforward cases, and referred all others to lawyers.
Most CIC respondents had limited experience with proceeding before the IRB, so they declined to comment on the need for representation at such proceedings. Of the four CIC respondents who did express an opinion regarding the need for representation at RPD hearings, two suggested that claimants should be represented by a lawyer because of the legal nature of these proceedings. One felt that a supervised paralegal would normally be able to provide the required representation, and one suggested that persons coming from genuine refugee-producing countries would not require representation. This respondent felt that only persons whose claims are very weak would normally need to be represented at their hearing.
Among the 35 IRB respondents, 18 felt that claimants should, preferably, be represented by lawyers at refugee hearings, although many of these felt that supervised paralegals could probably handle routine cases. Six felt that supervised paralegals could handle most refugee hearings, and three felt that experienced immigration consultants or paralegals could handle most refugee hearings without a lawyer's supervision. Eight respondents from the IRB expressed no opinion on the need for representation at refugee determination hearings.
3.2.3 Expedited process interviews
Only 40 respondents expressed any view regarding refugee claimants' need for representation or assistance in relation to expedited process interviews conducted by a refugee protection officer at the RPD (see Table 4). Sixteen of these respondents felt that a lawyer should attend the interview with the claimant. Twelve felt that trained paralegals could effectively represent claimants at expedited interviews, and 12 felt that anyone could serve as a representative at these interviews. Of the 12 respondents who felt that paralegals could provide this service, three stipulated that the paralegals should be working under the supervision of a lawyer.
The respondents who felt that representation is needed at expedited process interviews posited a number of different reasons. Some felt that there is need for someone to monitor the questions being asked, to intervene when necessary to clarify any misunderstanding that might arise, and to make sure that salient points in the claimant's story are not overlooked. They see this role as especially important in situations where claims not accepted in the expedited process are remitted for a full hearing following the interview. When this happens, notes from the interview form part of the record at the hearing. According to these respondents, a representative is needed at the interview since most claimants would not be aware of the need to place objections or comments on the record. Other respondents noted that the presence of a representative whom the claimant knows and trusts is needed to put claimants at ease so they can function effectively at the expedited process interview.
No respondents from CIC commented on this particular matter, and only eight of the 35 respondents from the IRB expressed any opinion on it. Of these, three felt a lawyer is required, four felt a paralegal could provide any needed representation and assistance, and one suggested that all that is required is someone to provide the claimant with moral support. Among the lawyers, seven felt that a lawyer is needed for expedited interviews, five felt that representation by a paralegal would be adequate, and four felt that someone without any legal background could fill this role. Eleven of the lawyers who were interviewed expressed no opinion on this issue. Only half of the 16 NGO respondents commented on the need for representation at expedited interviews. Of these, five felt the representative should be a lawyer, and three felt that any sympathetic person could fill the role. Among the eight paralegals and consultants who commented, one felt that claimants need to have a lawyer for expedited interviews, four felt that an experienced paralegal could provide appropriate representation, and one thought that all that is required is someone to provide moral support.
3.2.4 Post-determination proceedings for failed refugee claimants
The situation with regard to post-determination options available to unsuccessful refugee claimants has changed significantly over the months that research for this study was carried out. Prior to June 28, 2002, when the IRPA came into force, any claimant whose refugee claim was rejected by the Convention Refugee Determination Division (CRDD) of the IRB could, within 15 days after receiving notice of that decision, apply to CIC to be considered for inclusion in the post-determination refugee claimants in Canada class (PDRCC). According to many service provider respondents, the success rate on PDRCC applications was so low that they regarded the process largely as a waste of time and felt that it made little difference whether the applicant was represented or not. The grounds under which an applicant might be granted protection in Canada under PDRCC have been subsumed in the definition of a
"person in need of protection" under section 97 of the IRPA.Therefore, it is considered pointless to report details of responses regarding need for representation in the PDRCC process.
Since there was no experience with the pre-removal risk assessment (PRRA) process at the time of the interviews, very few respondents made any reference to it in their responses. Those who did comment generally felt that legal representation would be required for PRRA applications, especially in cases where a hearing is likely. (For example, in cases relating to claims that were found to be ineligible to be determined by the RPD and for repeat claims raising credibility issues.) PRRA applications involving a simple review of updated publicly available information on conditions in an applicant's home country might not require any representation.
The other administrative appeal option open to unsuccessful refugee claimants - an application to the Minister to be granted permanent resident status in Canada on humanitarian and compassionate (H&C) grounds - remains available under the IRPA. However, the scope of H&C applications may be somewhat narrower now that the grounds on which the RPD can grant protection to persons at risk have been widened from what they were under the Immigration Act. Specifically, issues of risks faced by the appellant in his or her home country, which previously might be raised in H&C applications, are now supposed to be dealt with at the RPD hearing and in the PRRA process immediately prior to removal. H&C applications are meant to be limited to circumstances pertaining to the appellant's situation in Canada, and to factors other than risks faced by the appellant in his or her home country, that might justify issuance of a Minister's permit.
In addition to PRRA and H&C applications, unsuccessful refugee claimants can apply to the Federal Court for judicial review of the decision rejecting their claim. Considerations with respect to need for representation in H&C applications and judicial review applications are quite different and respondents' assessments differed accordingly.
With regard to judicial review, respondents in all categories were unanimous in the view that representation by legal counsel is an absolute necessity. The process in the Federal Court is quite complex, even for experienced lawyers. The deadlines for filing a leave application and a supporting brief are quite short. To have any prospect of success, a leave application must be accompanied by convincing, well-crafted legal arguments highlighting reviewable errors in the contested decision. The kinds of errors that can be raised for judicial review are limited and legalistic in nature. The leave application requires a careful analysis of what transpired at the hearing to identify any reviewable error. An in-depth understanding of administrative law principles is needed to recognize the sorts of errors that can reasonably ground a leave application.
While it is theoretically possible for claimants to make such an application on their own, it is utterly unrealistic to expect any claimant to do so, particularly considering their unfamiliarity with the Canadian legal system and the fact than many of them cannot work in either of Canada's official languages. Even if claimants could find someone who is not a lawyer who could handle the technical aspects of the judicial review application, this is not an option open to them. The Federal Court Rules (Rule 119) provide that a person may only appear in person or be represented by a lawyer. Non-lawyers do not have standing to represent clients at the Federal Court.
It is difficult to provide a precise breakdown of responses with regard to the need for assistance and/or representation in post-determination proceedings at CIC because the questions relating to this matter dealt with PDRCC applications, H&C applications and pre-removal risk assessment together. A summary breakdown of these responses is provided in Table 5. Of the 65 respondents who expressed any views on the matter, 59 suggested that representation is required for at least some post-determination proceedings. Most of the interviews were conducted before the IRPA came into force on June 28, 2002, and only eight of the respondents made any reference to PRRA proceedings, with all eight indicating that representation would be required for these proceedings. Three respondents suggested that representation might only be required for H&C applications but not for PDRCC. One respondent felt that representation is required for PDRCC but not for H&C applications. Seventeen of the hearing participants and six of the service providers did not respond to the questions regarding this issue.
Ten of the 24 lawyers who commented, and eight of the 16 NGO respondents, felt that legal representation is needed for these administrative post-determination proceedings. Seven out of the nine paralegals and consultants who commented felt that they were qualified to handle these cases, while two felt that lawyers are required. Only one of nine CIC respondents and two of eight IRB respondents who commented felt that legal representation is required. In general, service providers were more inclined than hearing participants to view these post-determination proceedings as involving complex legal issues that can best be dealt with by someone with the sort of expertise that lawyers and trained paralegals are presumed to have.
Specific questions on the need for representation in post-determination proceedings were not included in interviews with individual refugee claimants because most of the respondents had no direct experience with these proceedings. The two claimants who did have such experience indicated that a lawyer had assisted them. Both felt that this assistance was definitely needed and that they depended on their lawyers to guide them through the process. They were not in a position to comment on whether a non-lawyer could provide adequate representation for the post-determination proceedings.
-  The specific questions addressing the need for assistance in case preparation and the type of assistance required were:
"1) In your opinion, do refugee claimants need any form of assistance for refugee status determination proceedings conducted by the IRB? Please elaborate as to why assistance and/or representation is or is not needed for refugee status determination proceedings. 2) What sort of assistance and/or representation do you think refugee claimants need to prepare for their refugee status determination hearing? 3) What qualities or qualifications should persons have in order to provide the sort of assistance and/or representation that you believe is needed by refugee claimants to prepare their case?"Data in Table 3 is based on responses to the last of these questions.
-  In addition to the general question regarding need for representation in refugee status determination proceedings noted in footnote 14, respondents were asked:
"1) What sort of assistance and/or representation do you think refugee claimants require at their refugee status determination hearing? 2) What qualities or qualifications should persons have in order to provide the sort of assistance and/or representation that you believe is required by refugee claimants at their refugee status determination hearing?"
-  The fear of persecution must be based on the claimant's race, religion, nationality, membership in a particular social group, or political opinion. The Convention criteria are incorporated into Canadian law under s. 96 of the IRPA.
-  Refugee protection officers were known formerly as refugee claim officers (RCOs). The title has been changed under the new Refugee Protection Division Rules.
-  The specific question asked was:
"What qualities (qualifications) should persons have in order to provide the sort of assistance and/or representation that you believe is needed by refugee claimants in relation to the expedited process?"The refugee claimants who were interviewed were not asked this question, because only one of them had any direct experience with the expedited process. The question was put only to respondents who had previously indicated that refugee claimants require some form of assistance or representation in relation to proceedings before the RPD.
-  The grounds for judicial review, set out in section 18.1(4) of the Federal Court Act, are that the federal board, commission or other tribunal whose decision is being challenged: (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.
-  The specific questions were:
"1) In your opinion, do failed refugee claimants require any form of assistance and/or representation in post-determination proceedings conducted by CIC (i.e., PDRCC, humanitarian and compassionate appeals, and under the new Act [IRPA] pre-removal risk assessments? Please elaborate as to why assistance and/or representation is or is not needed for these post-determination proceedings. 2) What sort of assistance and/or representation do you think failed refugee claimants need to prepare applications for post-determination proceedings? 3) What sort of assistance and/or representation do you think failed refugee claimants require at hearings or interviews conducted in connection with post-determination proceedings?"These were followed later in the interview by the following question:
"What qualities or qualifications should persons have to provide the sort of assistance and/or representation that you believe is required by refugee claimants in relation to post-determination proceedings conducted by CIC?"
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