Immigration and Refugee Legal Aid Cost Drivers

7. Impact of legislative and jurisprudential developments

7. Impact of legislative and jurisprudential developments

7.1 Cost implications of the new Immigration and Refugee Protection Act

7.1.1 Front end processing linked to rapid referral to RPD

Section 100(1) of the new Immigration and Refugee Protection Act (IRPA) provides that an officer from CIC shall, within three working days after receipt of a claim, determine whether the claim is eligible to be referred to the Refugee Protection Division (RPD) of the IRB [91]. In the event that the eligibility determination is not made within the three working days, the claim is deemed to have been referred to the RPD (s.100(4)). Section 104 of IRPA provides authority for CIC to re-determine eligibility at any time after a claim has been referred to the RPD, in which case the RPD loses jurisdiction to determine the claim [92]. This combination of measures gives the RPD jurisdiction to start the asylum status determination process quickly after claims are presented. This overcomes problems that formerly occurred when referral of claims to the CRDD was delayed, sometimes for months [93]. At the same time, claims that are subsequently discovered to be ineligible can be easily pulled from the refugee determination process.

It is anticipated that this change will have little if any cost impact for legal aid. There may be a short term increase in legal aid costs if the RPD succeeds in significantly increasing the number of claims determined within a given time period. But this would not be directly attributable to the accelerated referral provided for under s.100(1) of IRPA. Depending on how many referrals are ultimately pulled back, it is possible that legal aid expenditures may be incurred on behalf of claimants who may otherwise never have been able to pursue their claim. But based on past experience, with less than one percent of all claims having been found to be ineligible, it is unlikely that there will be very many of these cases. Even with the increased security screening that has been implemented in the wake of the terrorist attacks in the United States in September of 2001, there has not been a significant increase in the number of claimants found to be ineligible. In cases where the claimant is making a repeat claim, ineligibility for referral will be readily apparent. The remaining cases, where claimants may be determined to be ineligible after a considerable amount of work has been done with respect to their claims, are likely to be so few in number as to have a negligible impact on legal aid costs.

Current implementation plans for the new legislation call for immigration officers to place greater emphasis on front-end screening of refugee claimants when claims are first presented. In recent years, point of entry interviews of refugee claimants were substantially curtailed as a result of resource cutbacks at CIC. Eligibility decisions have increasingly been made on the basis of replies to mail-in questionnaires, which were given to claimants after a cursory interview at the point of entry. Additional resources are now being provided at points of entry to enable immigration officers to conduct more in-depth interviews so they can make informed eligibility determinations within the three working-day time frame prescribed in IRPA.

The primary focus of these interviews is to gather information required to make eligibility determinations. However, much of this information is also relevant for purposes of determining the merits of individual refugee claims. For example, information provided in eligibility and admissibility interviews may be consistent with or may contradict important elements of the stories that claimants tell in their Personal Information Form (PIF) and at their status determination hearings. These consistencies and contradictions can be important factors in assessing the credibility of individual claimants. Also, disclosures of eligibility and admissibility of entry interviews allow the RPD to make an early assessment of the sort of research that may be required and the potential for streaming cases for determination in the expedited process.

RPD members have indicated a strong desire to make greater use of officers' notes from eligibility and admissibility interviews, especially if appropriate measures are put in place to ensure the accuracy and relevance of these notes. In the past, claimants' counsel have raised concerns about the reliability of the notes, considering the circumstances under which the interviews are conducted [94]. It can be anticipated that if immigration officers conduct more in-depth point of entry interviews and RPD members make greater use of notes from these interviews, there will be an increase in motions to exclude the notes from evidence at RPD hearings. If RPD hearings become more protracted as a result of procedural wrangling over admissibility of interview notes, this may result in increased legal aid costs, especially in provinces where lawyers are paid for actual time spent in hearings.

Increased focus on accelerating front-end processing and on gathering substantive information about refugee claims during eligibility and admissibility interviews is likely also to lead to increased pressure from lawyers and other refugee advocates to provide some form of advice or representation to refugee claimants for these interviews [95]. In the Dehghani decision ([1993] 1 S.C.R. 1053), which is the current leading case on this issue, the Supreme Court of Canada held that there is no right to counsel at admissibility and eligibility interviews. However, should this ruling be successfully challenged, providing legal aid for these initial interviews would constitute an entirely new expense that could be a significant cost driver for legal aid programs.

7.1.2 Increased RPD hearing capacity as result of move to single member panels

Under the Immigration and Refugee Protection Act, the RPD normally sits in single-member panels. This is a significant departure from the former Immigration Act, which specified two members as the quorum for CRDD panels. The impact of transition to single member panels is muted by the fact that, prior to implementation of IRPA, the CRDD had already made significant progress in having cases heard by single-member panels with the consent of the parties. In fiscal year 2001-02, 57% of CRDD hearings concluded across Canada were conducted by single-member panels. In Vancouver, 82% of hearings were conducted by a single member of the CRDD, while in Montreal, 58% of hearings were conducted by a single member. Utilization of single-member panels was lower in Toronto, where only 48% of hearings were concluded by single member panels (IRB, 2002d). However, the shift to single-member panels in the vast majority of cases to be determined by the RPD after June 28, 2002 can be expected to significantly increase the total number of cases that can be concluded each year. This will have a direct and immediate impact on legal aid costs.

It is difficult to calculate the full significance of the move to single-member panels with regard to the number of cases the RPD will be able to conclude. The IRB projects that 41,000 refugee claims will be concluded in 2002-03, which represents a 46% increase over the output achieved in 2001-02. This increase is not entirely attributable to the move to single-member panels. Other measures, such as increased utilization of the expedited process and an increase in the member complement are also expected to play an important role. But it is reasonable to suppose that two members sitting alone can conclude at least 50% more cases [96] than they can when sitting as a two-member panel. Beyond the percentage of hearings that were concluded by single member panels in 2001-02, there will be roughly a 35% to 40% increase in utilization of single-member panels nationally as a result of implementation of IRPA. From this, one can project that the move to single-member panels will increase the number of hearings the RPD is able to conclude by 17% to 20% [97]. The impact of this change will be felt more dramatically in Toronto, where utilization of single member panels will increase by 45% to 50%, resulting in an increased hearing capacity in the range of 22% to 25% [98].

If this increase leads to a proportionate increase in the number of refugee claims for which legal aid is required, the potential cost impact for legal aid authorities could be quite significant. Legal Aid Ontario estimates that it spent $15,273,337 to provide legal aid for refugee determination proceedings before the CRDD in 2001-02 (Roderick Strain, memo to Mary Marrone, June 11, 2002). A 22% to 25% increase in the number of certificates for refugee status determination proceedings could conceivably result in an additional cost of $3.6 million to $3.8 million for LAO. Looked at in a different way, an increase of 1,550 refugee status determination hearings [99] at an average cost of $1,700 for lawyers' fees [100] would cost LAO an additional $2.8 million. This figure does not include disbursements. The potential cost increase in Quebec could be 16% to 18% of the portion of its budget that is devoted to RPD proceedings. The impact for LSS in British Columbia is likely to be considerably smaller because single-member panels were already utilized in 82% of CRDD hearings in Vancouver prior to implementation of IRPA (IRB, 2002d). Increased hearing capacity in Vancouver resulting from the move to single-member panels will be limited to 5% to 7% or roughly 80 additional refugee status determination hearings [101]. At an average cost of $1,600 per hearing , this would represent an added cost of $128,000.

This projected impact of the move to single-member panels as a legal aid cost driver is limited to the timing of when the cost may be incurred. The real underlying cost driver is the number of refugee claims to be determined. The immediate cost challenge arises from the fact that the inventory of claims pending has increased steadily over the past three years as a result of the increased number of refugee claims being made in Canada. Despite year-to-year improvements in per-member productivity, the CRDD has been unable to keep pace with that increase. Until such time as the accumulated inventory of 55,000 refugee claims can be cleared, one can anticipate that cost pressures on legal aid programs will continue, even if the annual intake of new refugee claims abates. If the annual intake of new claims does decline the move to single member panels will eventually be accompanied by attrition in the number of members appointed to the IRB. In that case, the number of hearings conducted by the RPD should decline accordingly.

It is unclear what impact the move to single-member panels will have on the average length of RPD hearings. Other things being equal, hearings should tend to be shorter because there will be one less participant and there will be no need for the two panel members to synchronize their understanding of the evidence. The reduction in average length of hearings observed over the past two years may in part be associated with the increased utilization of single-member panels. However, RPD members who have not had much experience conducting hearings on their own may have problems maintaining effective control over proceedings when they no longer have the option of sitting with a second panel member.

To the extent that counsel have an incentive to maximize time spent in hearings, some of them may avail of the transition to test individual members' capacity to control proceedings. The IRB has provided customized training to prepare members for the transition to single-member panels. It remains to be seen whether this will be sufficient to equip the less experienced members for their new responsibilities, or whether there may be a short-term increase in the average duration of RPD hearings as members adapt to the change. Any increase in hearing time could be reflected in an increase in legal aid costs, especially in those jurisdictions that pay for actual time spent in hearings, without any cap.

It is also possible that there will be an increase in the number of reviewable errors made by new members who are conducting hearings alone without the opportunity to consult a more experienced colleague. To the extent that there is a resulting increase in the number of cases where leave is granted for judicial review and where RPD decisions are quashed and have to be reheard, this will be reflected in an increase in legal aid costs.

7.1.3 Consolidation of grounds for protection

Another significant change in the new legislation is the consolidation of the grounds on which asylum seekers can be granted protection. Under the former Immigration Act, the CRDD had jurisdiction to determine whether a claimant was a Convention refugee within the meaning of section 2(1) of the Immigration Act, which reflected the definition contained in the Refugee Convention. The PDRCC class covered failed refugee claimants who faced an objectively identifiable risk to their life, or who face extreme sanctions or inhumane treatment in the country to which the person could be removed. The grounds for granting protection under PDRCC were different from the grounds under the Refugee Convention and s.2(1) of the Immigration Act in that there was no requirement that the risk be linked to any of the five Convention grounds [102].

Under IRPA, the RPD is given jurisdiction to grant protected status to Convention refugees and to persons in need of protection. The statutory definition of "a person in need of protection" set forth in section 97 of IRPA incorporates key elements of the definition of a "member of the PDRCC class" set forth in s.2(1) of the former Immigration Regulations. However it does not exactly mirror the PDRCC definition as it substitutes the phrase "cruel and unusual treatment or punishment", drawn from the International Covenant on Civil and Political Rights, for the phrase "inhumane treatment" used in the PDRCC definition. The definition of "person in need of protection" in s.97(1) of IRPA also includes persons who are believed to be at risk of torture, as defined in Article 1 of the Convention Against Torture, and s.97(2) provides scope for regulations to prescribe other classes of persons in need of protection.

The consolidation of grounds for protection set out in sections 96 and 97 of IRPA also encompasses the risk elements that underlay some of the current H&C applications. H&C appeals based on personal risks that the person concerned may face in a country to which he or she could be returned are now being dealt with by the RPD in the refugee status determination hearing.

This melding of provisions from the former Immigration Act and Immigration Regulations with international human rights conventions raises interesting challenges with regard to definitive interpretation of the new law. It is anticipated that in the short run there will be a flurry of new legal arguments before the RPD and before the Federal Court as to how the extended definition should be interpreted. This could exert upward pressure on legal aid costs in two ways. First, RPD hearings will tend to be longer than at present, at least until such time as jurisprudence regarding interpretation becomes more settled. Second, in the initial period following implementation of the new Act, judicial review applications to the Federal Court are likely to raise complex legal questions. Lawyers working on these cases will be required to put in more effort than would be required for more routine appeals. They may look to legal aid to pay for this additional work.

Beyond creating some uncertainty regarding interpretation, the impact that consolidation of grounds for protection will have on case preparation and the length of RPD hearings is unclear. Widening the range of issues that have to be addressed could make preparation more complex and it could result in lengthier hearings on refugee claims. To the extent that this happens, it will exert upward pressure on legal aid costs in all jurisdictions, particularly those that pay counsel for actual time spent in hearings. Alternatively, consolidation of protection grounds could reduce the need to make convoluted arguments to bring claimants who are in need of protection within the Convention refugee definition. This could conceivably simplify case preparation and could result in shorter hearings.

7.1.3.1 Elimination of PDRCC review and changes to H&C appeals

Even if consolidation of protection grounds does make RPD proceedings more complicated, the consequent elimination of some of the formerly available appeal processes should serve to reduce legal aid expenses at the post-determination level.

As already noted in section 5.4, legal aid expenditures for PDRCC and H&C applications have been quite limited. This means that any potential cost reduction flowing from consolidation of the PDRCC and the risk aspect of H&C grounds with RPD refugee status determination hearings will also be quite limited. With H&C appeals, in particular, it is unclear how much saving will result from the consolidation. These will continue to exist for purposes of dealing with humanitarian and compassionate issues that are not related to risk, such as hardship caused to dependents in Canada if a supporting individual is removed.

Also, a completely new pre-removal risk assessment process (PRRA) is being introduced. While the PRRA process is limited to new evidence not reasonably available at the time of the original RPD hearing, it stands to completely absorb all of the resources currently devoted to reviewing PDRCC applications. Thus, the likelihood that the elimination of PDRCC and risk-based H&C appeals under IRPA will result in an easing of cost pressures on legal aid programs is extremely low. (See section 6.1.5 for further discussion of the PRRA.)


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