Representation for Immigrants and Refugee Claimants

13. Impact of representation on efficiency of processes

All respondents from CIC felt strongly that participation of representatives at admissibility and eligibility interviews generally impairs the efficiency of the process. One CIC manager expressed the view that, at ports of entry, it would be virtually impossible to function if the persons being interviewed routinely had representation. The principal concern here appeared to be with regard to the logistical problems that would be created if interviews had to be scheduled to accommodate representatives. However, another common theme noted by many of the officers who conduct admissibility and eligibility interviews was that the process would become more protracted and adversarial if representatives of the persons concerned participated actively in these interviews. The views of the CIC respondents in this regard were very much informed by their strong sense that these interviews are simply for the purpose of gathering factual information. They felt strongly that there is no need for the persons concerned to consult with any representative before answering the sort of questions that are asked at the interviews.

A small minority of service providers shared the view expressed by CIC officials, and felt that it is impractical and unnecessary to have representation at admissibility and eligibility interviews. The majority of service providers, who felt that some form of assistance or representation is needed, offered a different perspective with regard to the impact of representation on efficiency. They suggested that participation of a representative at these interviews could enhance overall efficiency of the process, because the representative could make sure that the person concerned understands what is required. The representative could also ensure that the questions asked are in keeping with the limited purpose for which the interviews are conducted.

For these respondents, the fact that information from the interviews follows the persons concerned in all later proceedings was a crucial consideration. When answers given are incorrect, either because the person concerned misunderstands or because he or she has been wrongly advised to give false or incomplete answers, it creates problems at subsequent hearings. Time must be spent on procedural wrangling over admissibility of the information and the weight to be accorded it. Respondents who held this view suggested that these problems could be avoided if the persons concerned had appropriate representation at admissibility and eligibility interviews.

Many of the IRB respondents, particularly the RCOs, offered a third perspective that was shared by some CIC respondents. According to these respondents, the answers provided by refugee claimants when they first arrive are most likely to reflect their true situation. They believed that claimants are often advised after they arrive in Canada to change critical elements of their story to enhance the likelihood of receiving a favourable decision. Proponents of this view believed that the absence of representation at admissibility and eligibility interviews increases the likelihood that the information provided will be spontaneous and truthful. For them, having this sort of information available at the refugee determination hearing greatly improves the efficiency of the process. Where the story told at the initial interview is consistent with the story told in the PIF and at the hearing, the claimant's credibility is enhanced and the hearings can generally be concluded more quickly. On the other hand, where the stories differ in a significant way, the resulting lack of credibility can also make it easy to determine the claim quickly.

The difference in these perspectives was driven very strongly by the place within the system occupied by the individual respondents. Each respondent appeared to be looking at the issue from the perspective of what impact it has on his or her particular function within the system. For immigration officers, the interviews generally go more smoothly when the person concerned is not represented. Service providers who assist claimants in presenting their case before the IRB often find that they must "explain away" prejudicial information provided at the admissibility or eligibility interview, or must explain why relevant information was not disclosed at that interview. It would make their job much easier if they had an opportunity to influence the conduct of the interviews, and to ensure that appropriate explanations or objections are placed on the record at the time of the interview. There was a shared belief among the RCOs who were interviewed that much of the information provided in support of refugee claims is false. They saw protecting the integrity of the process and testing claimant credibility as an important part of their role. For them, access to statements made by claimants at admissibility and eligibility interviews is a valuable tool that enables them to discharge their responsibilities more effectively.

The assessment of the impact that representation has on efficiency was conditioned by respondents' perspective regarding the good faith and sophistication of refugee claimants involved in the process. Those who saw representatives as making a positive contribution to the pursuit of truth looked on participation by representatives from the very earliest stages of the process in a positive light. Those who believed that representation at the initial interview may facilitate abuse of the process, either wittingly or unwittingly, regarded participation of representatives at these interviews in a negative light.

Interestingly, respondents were almost unanimous in their assessment that competent representation enhances efficiency in all proceedings other than admissibility and eligibility interviews. A substantial majority of respondents believed that immigrants and refugee claimants are singularly ill-informed about procedural aspects of the processes in which they are involved. Most respondents from all groups, other than CIC, were generally agreed that the substantive knowledge that most immigrants and refugee claimants have is incomplete and vague. When one adds to this the fact that many immigrants and refugee claimants are not able to participate effectively in these legal processes in either French or English, the facilitative role that can be played by competent representatives is evident. The ability of competent representatives to focus case presentation on salient issues, to ensure that all relevant issues are addressed, and that relevant evidence is presented, is also seen by respondents as having a positive impact on efficiency of proceedings.

Respondents in all groups also felt strongly that incompetent and dishonest representation has a very negative impact on efficiency. A number of immigration officers and IRB members commented on the fact that incompetent counsel delay proceedings by asking for unnecessary adjournments, by leading irrelevant evidence and by failing to present their clients' cases in an organized fashion. Many service providers deplored the role played by incompetent and dishonest consultants and lawyers. They also expressed concern about the negative impact of misinformation provided by well-meaning but ill-informed individuals who try to assist immigrants and refugee claimants. Four of the claimants who were interviewed for the study related disturbing stories about how the presentation of their claims was badly set back by incompetent representatives. In each of these cases, additional proceedings were required and additional costs were incurred to undo the harm caused by the incompetent representatives.