Representation for Immigrants and Refugee Claimants

4. Special needs

Service providers and hearing participants were asked whether females, minors and persons with mental disabilities have any special representation needs in relation to immigration and refugee proceedings[27]. They were also asked to identify other special needs groups of which they might be aware, and to comment on the availability of services to address the special needs that they identified. Of the 84 respondents who were asked to comment on these special needs groups, 60 expressed opinions with regard to at least one group.

4.1 Women

Forty-eight respondents indicated that women have special representation needs over and above those needs that apply to the client population at large. Most of the respondents' comments were addressed to needs of female refugee claimants. Twelve respondents felt that women do not have any special needs and a further 24 expressed no opinion on the matter (see Table 9). The point most commonly noted is that representatives and decisionmakers have to be sensitive to the particular situation in which female claimants find themselves because of their gender.

Table 9 Respondents' Assessment of Special Representation Needs - Women
Respondent Group Number of Respondents Yes No No Comment
Lawyers 26 21 0 5
NGO 16 9 1 6
Paralegals and Consultants 12 6 2 4
CIC 13 4 7 2
IRB 17 8 2 7
Total 84 48 12 24

Respondents who noted special representation needs for women pointed out that many female refugee claimants have suffered brutal and degrading sexual and emotional abuse, either at the hands of their spouses or as victims of civil violence. As a result, they are severely traumatized and may have great difficulty relating the details of the persecution they have suffered, particularly relating those details to males. These respondents also noted that women from certain cultures find it easier to relate to other women than to men, simply because they have lived in highly segregated communities where most of their contact has been with other women. There was widespread agreement among respondents that representatives, decisionmakers and other persons involved in the refugee determination process need to be sensitive to these gender-related issues.

Some respondents went further, and suggested that it is important to give women the choice of having a female representative. They also felt that, in cases where female claimants may have difficulty relating details of their story to men, the interpreter, the decisionmaker, and other hearing participants such as the refugee protection officer assigned to the case should be women. Other respondents, including some of those who felt that female refugee claimants have special needs, took exception to the notion that gender sensitivity requires that female claimants be represented by females and that their cases be dealt with exclusively by women. Speaking directly from personal experience, they noted that, in their opinion, the female claimants they have dealt with can be equally well represented by men or by women, provided the representative is sensitive to these issues. Likewise, with regard to decisionmakers, these respondents felt that the key issue is the ability of the individual decisionmaker to deal sensitively with the issues in each case, rather than the gender of the decisionmaker per se.

There was no clear consensus on this issue, and the differences of opinion among respondents did not break down on lines of gender or respondent group. Respondents generally acknowledged that it is preferable, where possible, to give the claimant some choice of representative, but they did not see same-gender representation as a self-evident requirement. If there was any consensus among respondents, it was that, first and foremost, claimants require competent representation. Sensitivity to the circumstances of the individual client was seen as an important component of competent representation.

4.2 Minors

Fifty-three respondents identified minors as having special representation needs. Only one respondent expressed the view that minors do not have special needs, while 20 made no comment on the issue (see Table 10). Most of the concerns noted related to the need for minors to have a designated representative.

Children, especially those who arrive in Canada without an accompanying adult, are among the most vulnerable of all immigrants and refugee claimants. They do not have the legal capacity to instruct counsel on their own behalf. When children arrive unaccompanied, it is usually because their parents have sent them. But it is uncertain whether they have been sent for their own protection or for other, more questionable reasons, for example, to work in the sex trade, as couriers for drug dealers, or as indentured labourers in illegal sweatshops. Apart from their lack of legal capacity, most minors lack the education and life experience to fend for themselves when they arrive in Canada. As a result, they are extremely vulnerable to being exploited.

Recognizing this fact, the IRPA (s. 167(2)) provides for the appointment of a designated representative for any person who is the subject of proceedings before a division of the IRB where the person is under 18 years of age or unable, in the opinion of the applicable division, to understand the nature of the proceedings. The Rules of all three divisions of the IRB require counsel to notify the division and any other parties to the proceeding, without delay, when counsel believes that a designated representative may be needed. (Refugee Protection Division Rules, s. 15; Immigration Division Rules, s. 18-19; Immigration Appeal Division Rules, s. 19).

Table 10 Respondents' Assessment of Special Representation Needs - Minors
Respondent Group Number of Respondents Yes No No Comment
Lawyers 26 17 1 8
NGO 16 11 0 5
Paralegals and Consultants 12 5 0 7
CIC 13 11 0 2
IRB 17 9 0 8
Total 84 53 1 30

The criteria for designating a representative for a refugee hearing are described in the CRDD Handbook (IRB, 1999):

The person to be designated to represent the claimant:

  • must be over 18 years of age;
  • must be able to appreciate the nature of the proceedings;
  • must be willing to represent the claimant;
  • must be readily able to do so;
  • must not stand to gain anything by having a negative decision made against the claimant in the case (i.e., no conflict of interest).

Where the claimant has a parent, other relative, legal guardian, or trusted friend who appears to be capable and can meet the above criteria, then that person will usually be designated as representative.

In other cases, the Refugee Division member may select a representative from a list of professional persons in their region, generally lawyers or social workers, who are available and willing to accept the appointment. Potential representatives named on the list should have been screened to ensure that they have satisfactory knowledge and experience for the task at hand and that their actions will be governed by a code of professional conduct.

Another factor that may often be important in selecting a suitable representative is the representative's familiarity with the language and culture of the claimant.

Many of the respondents noted that the present system for designating representatives is not working. Some respondents indicated that there is insufficient regard for whether the persons designated fully understand the nature of their role. When this happens, there is little confidence that the designated representative will put the interests of the child ahead of any personal interests he or she might have. Rather than taking instructions from the designated representative, counsel must often spend additional time when preparing the child's case to make sure that the designated representative understands his or her role and is acting in the best interests of the child. With time limits under present legal aid tariffs being barely adequate to prepare normal cases, counsel who are paid by legal aid have little incentive to spend any extra time on case preparation (Frecker, 2002). As a result, pre-hearing consultation between counsel and designated representatives may not be as thorough or as effective as it should be.

When the formal designation does not take place until commencement of the hearing, there is no one who is formally accountable for watching out for the child's best interests during the critical case preparation stage. The resulting lack of clarity regarding the designated representative's role can compound the problem of inadequate pre-hearing consultation. This can lead to bizarre results. For example, one respondent described an incident where, in the course of a hearing, there was an open disagreement between counsel and the designated representative as to what evidence was to be presented in a child claimant's case.

Children who are accompanied by their parents have fewer problems because, in the normal course of events, one of the parents will presumably be the designated representative and can assume that role even before being officially appointed. However, in cases involving separated or unaccompanied children, and in cases where the child may have a separate claim, independent from the parents' claim, delay in appointing a designated representative can create major problems.

Some of the lawyers and NGO respondents who expressed concerns regarding designated representatives suggested that having each division of the IRB exercise the authority to appoint a designated representative separately, with respect only to the particular proceedings before that division, also creates problems. There is no simple procedure for designating a representative who can act in relation to all proceedings before the IRB. These respondents would prefer a system where a designated representative is appointed for purposes of all proceedings before the IRB. They also suggested, to ensure early involvement of a qualified designated representative, that a professionally qualified public body, such as a child protection agency, should fill the role of designated representative by default. An official from such an agency could then assume responsibility for instructing counsel as soon as a child, or other person who needs a designated representative, becomes involved in proceedings before the IRB. Where an appropriately qualified individual who has some personal link with the child is available, that person could be designated to replace the default representative.

4.3 Persons with problems regarding mental capacity

Fifty-one respondents felt that persons with mental disabilities have special representation needs. As with minors, early appointment of a designated representative was the primary need identified by respondents with respect to immigrants and refugee claimants suffering from mental disabilities. Two respondents suggested that persons with mental disabilities do not have any special representation needs, and 31 did not comment on the issue (see Table 11). In addition to the basic needs related to appointment of a designated representative, respondents pointed out that many persons with mental disabilities also need to be referred for appropriate psychiatric treatment and support. Many problems experienced by persons with mental disabilities can be traced to the fact that appointment of a designated representative is usually delayed until the commencement of the hearing.

Table 11 Respondents' Assessment of Special Representation Needs - Mentally Disabled
Respondent Group Number of Respondents Yes No No Comment
Lawyers 16 16 1 9
NGO 16 9 0 7
Paralegals and Consultants 12 5 0 7
CIC 13 9 0 4
IRB 17 12 1 4
Total 84 51 2 31

Immigrants and refugee claimants who arrive at a port of entry suffering from a severe mental disorder face special problems. These individuals sometimes claim asylum because they do not know any better. One respondent, a lawyer from Ontario who has considerable experience dealing with cases of this sort, noted that mentally disturbed refugee claimants are frequently detained, especially if they behave in an erratic or aggressive way. Often, they are held in provincial jails where they are incarcerated with common criminals. For individuals suffering from paranoid delusions, schizophrenia or depression, the stress of being detained in these circumstances can severely exacerbate their condition. Their refugee claims are referred to the RPD, often without attention being drawn to the fact that they are mentally disturbed. They then get placed on track for a refugee hearing that will be held many months down the road[28]. Meanwhile, in the absence of the appointment of a designated representative, people continue to overlook the core problem, which is that the claimant is mentally disturbed.

Respondents suggested that considerable headway could be made to rectify the problems experienced by persons suffering from mental disabilities if a system were put in place to appoint a designated representative as soon as it becomes apparent that the person concerned is mentally disturbed. The designated representative could then take appropriate steps to determine whether the refugee claim should be withdrawn, or whether it should be pursued. The biggest single challenge is to identify the cases where the persons concerned are suffering from a disability that warrants the appointment of a designated representative.

Working with a designated representative can be particularly difficult for lawyers when mentally disabled clients do not realize that they lack legal capacity, and they disagree with the course of action proposed by their designated representative. In these cases, the lawyer must endeavour to ascertain what is in his or her client's best interest, but, in a strictly legal sense, the lawyer is expected to take instructions from the designated representative.

4.4 Victims of torture and other special needs groups

Twenty-eight respondents identified other groups of immigrants and refugee claimants with special representation needs (see Table 12). Some of these respondents identified more than one additional special needs group. Twelve indicated that there were no special needs groups other than women, children and the mentally disabled. Forty-four respondents made no comment on this issue. The most frequently mentioned groups were victims of torture and other trauma, including severe sexual abuse (11 respondents), illiterate claimants (seven), and persons with physical disabilities, including elderly claimants (four). Other groups identified were refugee claimants whose claim is based on sexual orientation (four), undocumented detainees (two), mass arrivals (two), and spouses with separate claims (two). One respondent felt that claimants from unusual language groups have special representation needs, and another mentioned refugee claimants who are exploited by unscrupulous agents as having special needs.

Table 12 Respondents' Assessment of Special Representation Needs - Torture Victims and Others
Respondent Group Number of Respondents Yes No No Comment
Lawyers 26 14 0 12
NGO 16 5 0 11
Paralegals and Consultants 12 6 1 5
CIC 13 1 8 4
IRB 17 2 3 12
Total 84 28 12 44

Respondents indicated that victims of torture and other extreme trauma need special support to help them cope with their experience. They may also need intensive psychological counselling to enable them to deal with the stresses associated with recounting that experience. Respondents who identified women as having special needs noted that women who have been raped or who have been victims of extreme sexual abuse have special counselling needs that are analogous to those of other severely traumatized claimants.

The respondents who mentioned other special needs groups did not elaborate on what special sort of representation they might require. Presumably, persons who are illiterate need special help to understand the documents that are given to them, and physically handicapped individuals may require special accommodation to deal with the limitations imposed by their disabilities. According to one of the respondents who mentioned homosexual refugee claimants as a special needs group, these claimants face special problems because of a high incidence of homophobia, particularly among interpreters. Detainees face special problems because they are isolated from the normal support networks in the community, and sometimes have great difficulty in making the necessary arrangements to obtain identity documents from their home country. The special representation needs of refugee claimants who arrive in large groups arise from the special way in which mass arrivals are sometimes dealt with. For example, there are special problems related to providing representation to claimants who are detained at remote locations, as happened with the Chinese migrants who arrived en masse by boat in British Columbia in 1999.

Spouses with separate claims may need separate counsel, or at least may need to have their claims heard separately to ensure that the unique elements of their respective claims do not get confused or overlooked. Counsel who represent refugee claimants from unusual language groups sometimes encounter problems in finding competent interpreters who can communicate with the claimant in his or her language. Beyond that, the representation needs of such clients are not significantly different from those of other refugee claimants. When dealing with refugee claimants who are being exploited by unscrupulous agents, representatives need to be aware of the possibility that the claimants may be subject to ongoing intimidation by the agent or may have been wrongly instructed by the agent to tell a false story.

4.5 An effective approach to providing designated representatives

According to respondents from Montreal, Quebec has developed a system with regard to appointment of designated representatives that appears to be working better than those in other jurisdictions. The Quebec government has established Service d'aide aux réfugiés et immigrants du Montréal Métropolitain (SARIMM). The 12 to 16 staff persons who work for SARIMM are employed by a local community service centre (CLSC) that encompasses a variety of government services. SARIMM personnel specialize in providing services to immigrants and refugees. Most notably, they operate a reception service to assist new arrivals to find housing and to access needed medical and social services. SARIMM has a standing agreement under which members of its staff are appointed by the IRB as the designated representatives for unaccompanied minors and persons with mental disabilities who are involved in proceedings before any of the three divisions of the IRB in Montreal. Two SARIMM staff members, one assigned full-time and the other half-time, provide this service. SARIMM personnel who run the reception service identify clients who require a designated representative. One of the staff members who serves as a designated representative meets with the client, lines up legal counsel, and works closely with counsel throughout the preparation and presentation of the client's case.

This arrangement ensures that SARIMM personnel are effectively working on the case from the outset[29]. Beyond this significant benefit, the arrangement also ensures that the client has an experienced designated representative who is thoroughly familiar with the process and who fully understands the responsibilities associated with that role. At present, the formal appointment as designated representative does not take place until the day of the hearing. The respondent who provided detailed information about SARIMM noted that the present arrangement could be further improved if the formal designation were to be made earlier in the process, possibly when the client attends the initial case intake interview at the IRB[30]. This interview takes place seven days after the claim is referred to the IRB. No other regional office of the IRB has an equivalent to these case intake interviews, which are used in the Montreal regional office to facilitate case management and to provide claimants with reliable information as early as possible in the process (Simon Pérrusse and Michel Paulo, interview, May 21, 2002). But the IRB could, without undue difficulty, introduce a summary procedure to appoint a designated representative as soon as it becomes apparent that one is required.

No other province has a single agency working in a role similar to that played by SARIMM in Quebec. Establishment of such agencies in the other provinces would greatly facilitate early appointment of designated representatives and would provide better assurance that the persons serving as designated representatives understand their role and have the qualifications to discharge it competently.


  • [27] These questions were put only to service providers and hearing participants. Interviews with CIC and IRB managers focussed primarily on issues affecting operations and did not include questions on the special representation needs of particular groups.
  • [28] The lawyer who raised this concern most forcefully noted that many of these claimants come from the United States or from Western Europe. This observation was re-iterated by a case presenting officer (CPO) from CIC who has dealt with these cases at inquiries. The CPO noted that, in his experience, the problem can often be traced to the fact that the person concerned has stopped taking prescribed medications. Both the CPO and the lawyer suggested that what is needed is a system to ensure that mentally disturbed individuals are quickly referred for appropriate medical treatment. In cases where their alleged refugee claim is based entirely on some psychotic delusion, they would often be better served by being returned quickly to their home country where they can receive appropriate medical care.
  • [29] One IRB respondent from Montreal was critical of the way in which SARIMM is handling cases involving unaccompanied minors. According to this respondent, SARIMM is overly deferential to advice from particular ethnic communities when selecting lawyers to represent unaccompanied minors from these communities and when selecting foster homes for the children. This respondent felt that it would be preferable to have lawyers as designated representatives for unaccompanied minors. The respondent was more satisfied with SARRIM's role in providing designated representatives for claimants with mental disabilities, because identity of the claimant is less often a problem and health care personnel are more actively involved in these cases. It must be noted that this was the only negative comment received concerning SARIMM's role as designated representative.
  • [30] This intake interview is conducted by a case officer, who does not have the authority to appoint the designated representative. But an arrangement could be made to have the assistant deputy chairperson or a co-ordinating member make the formal designation when that intake interview takes place.

 

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