Immigration and Refugee Legal Aid Cost Drivers

7. Impact of legislative and jurisprudential developments (cont'd)

7. Impact of legislative and jurisprudential developments (cont'd)

7.3 Pre-removal risk assessment (PRRA)

The new Immigration and Refugee Protection Act provides for a pre-removal risk assessment (PRRA) to ensure an effective review of risk prior to removal. Such reviews currently take place, but they are not formalized in legislation (CIC, 2001f: 16). The assessments are conducted by designated officers within CIC (PRRA officers), rather than by the IRB. The process is intended in most cases to be a purely administrative review, based on written submissions. Section 113(b) of IRPA provides that a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required. Section 159 of the proposed new Immigration and Refugee Protection Regulations specifies the factors to be considered by the Minister in forming that opinion. It can be anticipated that hearings will be required in cases where there is evidence central to the risk determination that raises a serious issue as to the applicant's credibility.

The PRRA process is used in three different situations. First, immediately prior to removal of a failed refugee claimant, the PRRA is used to determine whether there are any changes in the situation in the country to which the failed claimant is to be removed that would alter the original protection determination. If at the time of proposed removal, new evidence that was not available when the original determination was made establishes that the claimant falls within any of the grounds for protection in s.96 or s.97 of the Act, the individual will be given the same protected status that could have been conferred by the RPD. As a practical matter, this situation is most likely to arise where there has been a significant lapse of time between the original protection determination and removal.

Second, the PRRA is used to deal with all repeat claims. Persons who have made a previous refugee claim in Canada are ineligible to have a new claim referred to the RPD for determination. Any failed claimant who presents a new claim after having left Canada for more than six months after the removal order came into force will be dealt with through the PRRA, rather being referred to the RPD for a new hearing [111]. Only evidence that was not available at the time of the original RPD determination will be considered in the PRRA (IRPA, s.113(a)).

Third, asylum claims from any persons found to be ineligible to have their claims determined by the RPD, including persons who have been found to have abandoned or withdrawn a claim previously referred to the RPD (IRPA,s.101(1)(c)), are dealt with through the PRRA [112]. Where ineligibility to have a claim determined by the RPD is based on security or serious criminality grounds, determination in the PRRA that the individual is in need of protection can only result in a stay of removal. Other persons found to have a well founded fear of persecution or otherwise to be in need of protection are eligible for permanent landing in Canada in the same way they would have been had the risk determination been made by the RPD.

The PRRA process represents a significant formalization of the risk assessments that were formerly conducted immediately prior to removal. Many of the individuals applying for PRRA will presumably apply for legal aid. It is anticipated that PRRA applications will generally involve an effort similar to the effort formerly required for PDRCC applications. However, where a hearing is required, the effort involved in preparation and presentation of PRRA applications will be similar to that required in cases handled through the regular RPD determination process.

When assessing the possible legal aid cost implications of the PRRA, one must take into account the following factors. With respect to failed claimants who have never left Canada, the key issue is to what extent, if any, have conditions in the country to which the person would be removed changed since the original determination was made. If removal takes place within a short time after the RPD determination, it is unlikely that there will be any substantial evidence to support a PRRA application. The PRRA process in these circumstances is likely to be quite summary and applications for legal aid are unlikely to meet the merit threshold to qualify for legal aid. However, where there is a long delay following the original RPD determination, evidence in support of a PRRA application could be quite extensive. If the new evidence relates to circumstances particular to the claimant, as opposed to well-documented changed conditions on the country to which the person is to be removed, the new evidence may raise credibility issues that require a hearing. In these circumstances, the PRRA could be similar in complexity to the original refugee determination process before the RPD.

Similar considerations apply with regard to repeat claims. The closer in time a repeat claim is to the original RPD determination, the more likely it is that the matter will be summarily dealt with in the PRRA. But where considerable time has elapsed and conditions in the claimant's country of nationality have changed, a hearing may be required. However, limitation of the PRRA inquiry to new evidence should simplify matters considerably. In virtually all circumstances, use of the PRRA for dealing with repeat claims is likely to be less costly for legal aid than the process under which the previous CRDD determination could be completely re-litigated.

Since serious issues regarding the claimant's credibility almost invariably arise with respect to the alleged grounds on which protection is sought, individuals who have never had their claim determined by the RPD will likely require a hearing. Legal aid costs relating to these cases are likely to be very similar to the cost for cases that go before the RPD. At present, over 99% of the individuals who make refugee claims in Canada are found to be eligible to have their claims determined by the RPD. IRPA widens the grounds of ineligibility, so it is possible that some cases that were formerly referred to the CRDD will be now dealt with in the PRRA. However, since these cases would otherwise have been referred to the RPD, the net impact of this change on legal aid costs should be neutral.

When assessing legal aid cost implications of the PRRA, it is important to bear in mind that legal aid coverage for PDRCC submissions was formerly provided in only two provinces, British Columbia and Alberta. Expenditures in relation to PDRCC submissions in these provinces accounted for a very small portion of the entire legal aid budget for immigration and refugee matters [113]. If other provinces, particularly Ontario and Quebec, which between them account for almost 80% of all refugee claims determined in Canada, provide coverage for PRRA, total cost for delivering immigration and refugee legal aid across the country will rise. Whether the impact will be limited to the range of 2% to 2.5% of fee expenditures relating to immigration and refugee matters, which is the amount LSS in BC currently devotes to PDRCC submissions, remains to be seen. This will depend very much on how legal aid authorities exercise discretion in granting certificates for PRRA proceedings.

7.4 Changes in eligibility criteria

Section 100(1) of IRPA provides that a refugee claim is ineligible to be referred to the RPD if the claimant already has refugee status in Canada or another country, or has made a prior claim that has been determined to be ineligible or to have been withdrawn or abandoned. Claims are also ineligible for referral to the RPD if the claimant came to Canada from a designated "safe third country" or has been determined to be inadmissible to Canada on grounds of security, violating human rights or international rights, serious criminality or involvement in organized crime. Most of these eligibility criteria parallel the criteria set forth in s.46.01(1) of the former Immigration Act. However, there are two notable differences.

Under the former Immigration Act, a person whose refugee claim had been rejected by the CRDD was not eligible to make a new claim if the person had, since last coming to Canada, been determined by the CRDD not to be a Convention refugee or to have abandoned the claim [Immigration Act, s.46.01(1)(c)(i). However, such persons became eligible to make a repeat claim once they had been outside Canada for at least 90 days after the notice of abandonment or the negative decision was issued [Immigration Act, s.46.01(5)]. Persons who had withdrawn their claims before a decision was made, could make new claim at any time. Under IRPA, a claim is ineligible to be referred to the RPD if a prior claim has been rejected by the IRB or has been determined by the RPD to have been withdrawn or abandoned. Any repeat claim made more than six months after the prior claim was rejected is dealt with in the PRRA. Otherwise, the claimant is not eligible to apply for any sort of protection in Canada.

It is unclear how many claims will be screened out of the refugee determination process as a result of these changes. It is estimated that 2% to 3% of claims referred to the CRDD under the former Immigration Act were repeat claims [114]. Repeat claims referred to the CRDD prior to implementation of IRPA are going to be dealt with in the regular RPD hearing process. But repeat claims made after June 28, 2002 will be dealt with in the PRRA process, provided the claimants have been outside of Canada and at least six months have passed since their prior claim was rejected, or determined to have been withdrawn or abandoned.

The probable impact of this change on legal aid costs is likely to be small. The issues to be dealt with under PRRA are different from the issues dealt with in the original decision since the only evidence that will be admissible in PRRA is evidence that was not considered when the original decision was made. Repeat claims that do not raise any substantive new issues will be dealt with summarily, and likely will not qualify for legal aid. But prior to implementation of IRPA, this was already the case with repeat claims that raised no new issues. Claims that were previously withdrawn or abandoned, which were never the subject of a prior hearing, will likely require a hearing in the PRRA process very similar to the hearing that would be held if the case were referred to the RPD. If claims dealt with in the PRRA process appear to have merit, it is probable that they will qualify for legal aid in much the same way as would have been the case had they been referred to the RPD. The work required in representing claimants at hearings in the PRRA process is similar to the work required on claims that are referred to the RPD. Bearing all of these considerations in mind, any reduction in legal aid costs as a result of the more restrictive eligibility provisions under IRPA will likely be quite limited.

There could be a reduction in legal aid costs if the criteria for approving legal aid coverage for PRRA proceedings are more restrictive than was the case for proceedings before the CRDD under the former Immigration Act. However, changes to legal aid costs occasioned by changes in coverage, as decided by legal aid authorities, are independent of changes in federal immigration legislation.

7.5 Recent changes in national security legislation

In the wake of the terrorist attacks on September 11, 2001, the federal government introduced four separate bills to address the issue of terrorism. Close reading of the various bills that comprise this legislative package indicates that there is nothing in the package that has any bearing on legal aid costs relating to immigration and refugee matters.

Bill C-35 deals with foreign missions, international organizations and inter-governmental conferences. Bill C-44 contains a single provision that amends the Aeronautics Act to permit Canadian airlines to forward passenger manifests to foreign states.

Bill C-36, The Anti-Terrorism Act, is omnibus legislation that amended sixteen Acts of Parliament, including the former Immigration Act and the new Immigration and Refugee Protection Act. However, none of the amendments effected by Bill C-36 have any bearing on immigration and refugee legal aid costs. The provisions in Bill C-36 that create authority for the police to detain individuals suspected of having information related to a terrorism offence and individuals suspected of planning to carry out terrorist activity might conceivably be applied to immigrants and refugees. But any legal aid costs associated with such detentions are more properly ascribed to criminal legal aid than to immigration and refugee legal aid. Amendments to the former Immigration Act and the Immigration and Refugee Protection Act effected by s.46 of Bill C-36 are technical in nature, reconciling provisions in these Acts with other legislation, and these changes have no bearing on legal aid costs.

Bill C-42, which has subsequently been withdrawn by the government, included a number of provisions that might have potentially affected legal aid costs. The most significant of these changes was a provision that would allow for the detention of foreign nationals within Canada who are unable to prove their identity. At present, foreign nationals who are unable to prove their identity can be detained at a point of entry, but not after they have entered Canada. Such a provision, if enacted, could have the effect of increasing the number of immigration inquiries, which in turn could affect legal aid costs. However, all provisions relating to the Immigration Act and to the Immigration and Refugee Protection Act have been dropped from the new Bill C-55, which is intended to replace Bill C-42. Bill C-55 has not yet been enacted.


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