Representation for Immigrants and Refugee Claimants

10. Factors influencing clients' choice of representatives

Claimants and appellants [53]who were interviewed for this study were asked to rank in order of importance the factors that influenced their choice of a representative[54]. A summary of the responses is provided in Table 20. The factors listed in Table 20 are ranked in order of importance, as identified by the respondents[55]. Of the 22 individuals who responded, 12 rated expertise of the representative as most important and three identified expertise as the second most important factor. Seven relied on recommendations of others as the most important factor, and five said that such recommendation was the second most important factor. These two factors, by a wide margin, played the largest role in influencing the choice of a representative. The three remaining claimants identified other factors as most important to them in choosing a representative. For one it was the ability to communicate with the representative in his own language, for another it was the youth and perceived energy of the representative, and for the third it was the representative's knowledge of the claimant's home country.

Table 20: Client Ranking of Factors Influencing Choice of Representative
  1st 2nd 3rd 4th 5th Times Mentioned Weighed Score
Expertise 12 3 0 0 0 15 40
Recommendation 7 5 2 2 0 16 35
Country Knowledge 1 3 0 2 0 6 11
Language 1 0 2 1 4 8 10
Cost 0 2 1 1 1 5 7
Accessibility 0 0 3 2 1 6 6
Gender 0 1 2 0 1 4 5
Availability 0 2 0 0 0 2 4
Age/Experience 1 0 0 1 0 2 4
Ethnicity 0 0 0 0 0 0 0
Advertising 0 0 0 0 0 0 0
Other 0 0 0 0 0 0 0
Number of Respondents 22 16 10 9 7    

Six respondents rated knowledge of the client's home country as a factor in their choice of representative, and eight identified the representative's ability to communicate in the client's language as a consideration. Other factors mentioned were cost (five respondents), accessibility of the representative's office (six respondents), gender of the representative (four respondents), availability of the representative (two respondents) and age or experience of the representative (two respondents). No other factors, including advertising and ethnicity of the representative, were identified by any of the respondents as a consideration.

Individual respondents were asked to indicate, in retrospect, what sort of representation and assistance they felt they required to get through the process or processes in which they were involved (i.e., the refugee determination process, detention review and immigration inquiry proceedings, immigration appeal proceedings, etc.)[56]. All but two of the respondents felt that they needed to be represented by a lawyer because of the legal nature of the various proceedings. A number of the refugee claimants interviewed spoke very highly of the support and advice they received from NGOs. They particularly valued the time spent by NGO personnel to explain the process to them and to help them locate competent counsel. However, only the two respondents who were dissatisfied with the service they had received from their lawyers felt that the NGOs could have provided the representation they required to prepare for their hearing. Claimants particularly valued the time their representatives spent with them to prepare their case. Four respondents made special mention of how much they appreciated the role their lawyer played in walking them through the difficult issues that they would be likely to face in their hearing, even although, at the time, they felt the lawyer was being unduly harsh.

Claimants who were dissatisfied with their lawyers all complained that their lawyers appeared not to be interested in their case and spent insufficient time with them before the hearing. Two respondents from Montreal reported that most of their pre-hearing preparation was handled by assistants (paralegals) in their lawyer's office. Both expressed a strong desire to have more contact with the person who would be representing them at the hearing, and said that they felt insecure meeting with their lawyer only on the eve of the hearing. One of these respondents acknowledged that, when the hearing finally took place, she found that the preparation done by the assistant was adequate. The other was still waiting for her hearing and had yet to meet her lawyer, because the assistant was handling everything. She said that she would have preferred to meet with the lawyer at the outset, if only briefly, so each could get some idea of the other.

Willingness of the representative to spend time with clients, and the ability to reassure the clients and to explain substantive and procedural matters to them, appear to be important components of the type of representation needed by immigrants and refugee claimants. Clients who speak English or French, and who are reasonably familiar with the Canadian legal system, may have access to information from sources other than the representative. However, many immigrants and refugee claimants lack the basic knowledge and language skills needed to access information from these other sources. As a result, they are more dependent on their representatives to provide such information.

It is normal that clients who are involved in legal proceedings want the person who is representing them to spend time with them, explaining the process and discussing the planned course of action. The hourly cost for the representative's time acts as a natural check on this desire when the client is paying for the service, but this constraint is not in play for clients on legal aid.

From the foregoing observations, it appears that knowledgeable representation for refugee claimants requires significant legal expertise. This does not necessarily mean that lawyers are the only people who have any role to play in representing immigrants and refugee claimants in the various proceedings in which they are involved. But the complexity of the issues in play and the fundamentally legal nature of these proceedings mean that knowledgeable representation entails a significant legal expertise.

Many refugee claimant clients need to spend extensive time with their representative to prepare their case. This creates a challenge for legal aid programs, which are under constant pressure to find ways to contain costs. If the objective of a legal aid program is to provide knowledgeable, effective representation, the challenge is to find ways to do so in a cost-effective manner. Competent, well-trained paralegals clearly have a role to play, although it is important that lawyers be involved in a supervisory capacity, especially in cases that raise significant legal issues. There is also an important role for non-legal personnel at NGOs. But this is more in a supporting capacity, providing assistance with settlement-related issues, and serving as a source of reliable information and referrals to competent, qualified representatives.