A Synthesis of the Immigration and Refugee Legal Aid Research

4. Need for Representation

4. Need for Representation

Most respondents agreed that refugee claimants usually require some assistance at all stages of the immigration and refugee determination process, although there was less agreement on how that assistance could best be provided. This section reviews the stages of the immigration and refugee determination process (see Section 2.1) and identifies where refugee claimants would most likely require assistance and of what sort. The stages discussed are:

  • Eligibility and admissibility stage;
  • Before the hearing;
  • Determination hearings;
  • Detention hearings and immigration inquiries;
  • Federal Court of Canada and Supreme Court of Canada;
  • Immigration appeals;
  • Post-determination refugee claimant in Canada class and humanitarian and compassionate applications; and,
  • Pre-removal risk assessment.

The question of refugees with special needs is discussed separately at the end of the section.

4.1 Eligibility and Admissibility Stage

CIC immigration officials interview all persons entering Canada at points of entry to determine whether they are admissible. It is normally at this point that refugees seek to claim refugee protection status. CIC immigration officials then determine whether they are eligible to make a refugee claim and, if they are, whether they should be referred to the IRB for a refugee protection hearing. These interviews are designed to be non-confrontational and to gather basic information about the claim. All CIC respondents reported that this was their experience. However, other respondents, including the respondents from NGOs, felt that misunderstandings can occur during these interviews that have a negative impact later in the refugee determination process or may result in a claimant being found ineligible. However, very few claimants are currently found to be ineligible [10] at this stage in the process.

Refugee claimants usually need assistance in completing CIC administrative documents (for example, acknowledgement forms and screening documents). It is important that these documents are prepared carefully, because the information provided in any forms filled out later in the process must be the same as the information provided at this stage.

4.1.1 Current Level of Service Provision [11]

At the eligibility and admissibility stage, the legal and non-legal needs of refugees and immigrants are usually met by the same organization (most likely an NGO, but in some cases legal services plans). Refugee claimants face many practical difficulties when arriving in Canada. They are often destitute, unfamiliar with either official language or the majority culture, and require assistance finding housing, health services, and other social services. These needs must often be met in tandem with legal service needs, for example, to make sure that a claimant has a home address that can be used on forms or simply to better support a claimant through the refugee determination process. In general, a claimant's immediate needs, legal or non-legal, are dealt with by the first service a claimant comes in contact with, whether an NGO or a legal aid plan.

Ontario is the only province that provides legal aid for claims made at Canadian ports-of-entry at the point where a claimant enters Canada (for example, the airport where they arrive - referred to as a "port-of-entry claim"). Legal aid is provided in the rare cases where Legal Aid Ontario (LAO) has been informed that a claimant is likely to be considered ineligible or that a claimant is suspected of having committed crimes that would affect their claim.

Both Ontario and Alberta provide legal aid in similar situations for claims made "inland" to an immigration officer not working at a border. These types of claims are made by individuals who have been in the country as visitors, students, or workers.

4.1.2 Options for Service Provision

Some respondents felt that additional services should be provided in the areas of PLEI and non-legal advice and assistance since the vast majority of refugees have little or no accurate knowledge about the refugee determination process. The IRB is currently developing PLEI materials for claimants to guide them through the process. The guide will be made available to claimants and those providing assistance early on in the process.

Some respondents also indicated that if the interviews conducted during the eligibility and admissibility stage become more confrontational or more stringent, then additional assistance may be required to meet the needs of claimants at this stage in the process.

4.2 Before the Hearing

For those deemed admissible, most legal aid work takes place after eligibility is determined and before the refugee determination hearing. At this stage in the process, the central document of the refugee determination hearing, the Personal Information Form (PIF), is completed through a series of client interviews. The rest of the case is also prepared by examining notes from the eligibility and admissibility stage, collecting identity documentation and conducting relevant research.

A relationship of trust between a claimant and their representative is critical to the quality of representation, as the preparation of the PIF and other research activities depends on open communication. This trust must be established during the pre-hearing stage. Translation and interpretation are also key to the communication process during this stage.

Some respondents, many from NGOs, observed that the pre-hearing stage is frequently the point at which claimants seek assistance. At this stage, they discover that they cannot navigate the refugee determination process themselves. Claimants soon realize the importance of how facts are presented and that they lack the English or French literacy skills required to deal with the paper-dependent process.

4.2.1 Current Level of Service Provision

Legal services are currently provided by the legal aid plans in all six provinces that cover immigration and refugee legal aid. In some cases, paralegals are successfully carrying out pre-hearing tasks under the supervision of a lawyer. Supervised paralegals generally have cross-cultural experience and are able to spend more time with clients, which is useful in building the necessary trust between claimant and representative.

4.2.2 Options for Service Provision

Some respondents felt that supervised paralegals could carry out the bulk of pre-hearing work, as they have the skills and the time to build the necessary trust and communication with a claimant. However, others felt that paralegals could not carry out all pre-hearing tasks, as lawyers frequently want to retain control of the narrative section of the PIF since its structure is closely related to the legal arguments the lawyer would present at the refugee protection hearing.

4.3 Refugee Determination Hearings

For many claimants, the refugee determination hearing is the stage in the process where decisions are made that have the greatest impact on their status and their rights. It is at this point that a person's protection claim is accepted, rejected, withdrawn, or declared abandoned.

4.3.1 Current Level of Service Provision

Representation at refugee determination hearings is currently provided by lawyers under the legal aid plans of all six provinces that cover immigration and refugee legal aid.

4.3.2 Options for Service Provision

Some alternatives to service provision by legal aid lawyers at this stage were considered:

  • Self-representation - In the justice system as a whole, the option of self-representation is common, especially at administrative tribunals. However, respondents felt that this is not appropriate at immigration and refugee hearings because the legal matters at hand are very complex and refugees generally lack literacy in either official language and the necessary educational background to represent themselves [12].
  • Representation by supervised paralegals - Overall, the research suggests that supervised paralegals can represent claimants in the less complex CRDD cases. It was felt that this should also hold true for expedited Refugee Protection Division (RPD) hearings that replace CRDD hearings under the IRPA. However, it was also acknowledged that in more complex situations representation would be best provided by lawyers.

4.4 Detention Hearings and Immigration Inquiries

Some refugee claimants are detained following their admissibility interview because CIC officials believe that they are likely to pose a danger to the public or are not likely to appear for an examination, an inquiry or removal. Once a claimant is detained, there is a hearing within the first 48 hours. During this hearing, if it is determined that the person will be further detained, then there is another hearing in 7 days and then every month thereafter that a claimant remains in detention. These hearings are known as detention hearings and represent a stage in the process where a claimant's status and rights may be greatly affected.

If the CIC officer finds that there is reason to believe that a person is inadmissible to Canada or that a person in need of protection is ineligible to be referred to the IRB, then an immigration inquiry will be held at the Immigration Division (formerly the Adjudication Division) of the IRB. At the immigration inquiry a member will determine whether the person is inadmissible to enter Canada or ineligible to be referred to the IRB.

4.4.1 Current Level of Service Provision

Representation during detention hearings is primarily provided by legal aid lawyers in provinces where immigration and refugee legal aid is covered. Most respondents agree that lawyers are required for many detention hearings because the cases are very complex and there is a high potential for negative consequences for a claimant.

Legal aid is available for immigration inquiries in British Columbia, Alberta, Manitoba, and Quebec. However, immigration inquiries make up a very small part of legal aid services in these provinces. Very few applications are made for this type of legal aid and a claimant's case must be seen to have merit before the application is accepted.

4.4.2 Options for Service Provision

The research suggests that supervised paralegals can represent refugee claimants effectively at routine immigration inquiries, detention reviews and hearings. However, most respondents agreed that the services of a lawyer would best meet a claimant's needs when new evidence comes to light between the admissibility interview and the refugee determination hearing.

4.5 Immigration Appeals

Overseas CIC officials indicated that the following groups could make immigration appeals to the Immigration Appeals Division of the IRB:

  • Canadian citizens and permanent residents who have sponsored family class applications that have been refused;
  • Permanent residents and protected persons who have been ordered removed from Canada;
  • The Minister of Citizenship and Immigration (to appeal an Immigration Division decision in an admissibility hearing); and,
  • Permanent residents who have not fulfilled their residency obligations.

4.5.1 Current Level of Service Provision

Immigration appeals are currently covered under the legal aid plans of British Columbia, Alberta, Manitoba, Ontario, and Quebec.

4.5.2 Options for Service Provision

There are mixed views regarding the need for legal representation during immigration appeals. Legal representation is seen as being definitely required for most removal appeals, though it may be less essential for sponsorship appeals.

4.6 Federal Court of Canada and Supreme Court of Canada

All claimants before the IRB can apply for 'leave' to seek judicial review at the Federal Court of Canada, Trial Division, of a negative decision rendered by any of the IRB divisions. If the claim is denied at the Federal Court of Canada, appeals can go as high as the Supreme Court of Canada in certain precedent-setting cases.

4.6.1 Current Level of Service Provision

Judicial review and appeals at the Federal Court of Canada and appeals at the Supreme Court of Canada are covered by legal aid representation in all six provinces with immigration and refugee legal aid coverage.

4.6.2 Options for Service Provision

All respondents agreed that representation by a lawyer is required at the judicial review stage of the process. Refugee claimants cannot be expected to effectively appeal decisions at this level without qualified professional legal counsel.

4.7 Post-Determination Refugee Claimant in Canada Class and Humanitarian and Compassionate Applications

Post-determination refugee claimants in Canada (PDRCC) are claimants whose claim has received an 'unsuccessful determination' from the IRB, but who are considered to still be at risk if they returned to their country of origin. The category of PDRCC is established under the Immigration Act. Under the IRPA, this group of claimants will be covered by the pre-removal risk assessment (PRRA), where individuals whose claims are rejected can apply in writing to stay in Canada on "consolidated protection grounds", which include the Geneva Convention, and risks referred to in Article 1 of the Convention Against Torture, such as the risk of danger of torture or the risk of cruel and unusual treatment or punishment[13].

Humanitarian and compassionate (H&C) applications can be made by any non-Canadian, including refugee claimants whose claims are rejected by the IRB. Humanitarian and compassionate grounds that are considered may include being married to a permanent resident or having children born in Canada.

The number of PDRCC and H&C applications is fairly low, as is the cost of providing service in this area.

4.7.1 Current Level of Service Provision

British Columbia, Alberta, Manitoba, and Ontario provide legal aid coverage for H&C applications. Only British Columbia and Alberta provide coverage for PDRCC applications.

Legal services for PDRCCs and individuals filing H&C applications are also often provided by NGOs. It is at these two stages of the process where these organizations tend to provide most of their legal assistance to refugee claimants and immigrants.

4.7.2 Options for Service Provision

Opinions varied on how service for PDRCCs and individuals filing H&C applications could be improved. Non-lawyers suggested that lawyers are best suited to provide service as the cases involve complex legal issues. Lawyers suggested that non-lawyers (for example, paralegals) could provide service in this area, as the processes are largely fact-based.

4.8 Refugees with Special Needs

In some cases, refugee claimants have special needs that must be considered at all stages of the refugee determination process. Special needs cases include cases involving unaccompanied minors, victims of torture, people with mental illnesses or disabilities (such as Post-Traumatic Stress Disorder), or have cases where gender-based persecution is an issue. In these cases, the refugee claimants require more attention and support throughout the process. For example, they may require counseling or an appropriate guardian or designated representative may be assigned to them[14].


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