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Representation for Immigrants and Refugee Claimants

Representation for Immigrants and Refugee Claimants

(This study was published by the Canadian federal government in the year 2002)


"This study has been undertaken to examine the implications of the presence and/or the absence of different forms of representation for immigrants and refugee claimants in the various legal proceedings in which they become involved.

Access to representation in immigration and refugee proceedings is of direct relevance to the Department of Justice's mission of ensuring an "accessible, efficient and fair system of justice" and in upholding Canada's international obligations (Department of Justice, 2000).

At a personal level, it is an issue of immediate and direct concern for immigrants and refugee claimants themselves. It is also a matter of significant concern for persons involved in the management and conduct of the various proceedings involving immigrants and refugee claimants, as well as for those responsible for the operation of legal aid programs across Canada."

"[1] This study is limited to proceedings that take place within Canada. Immigration proceedings conducted at Canadian consular offices in foreign countries (for example, processing of visa applications) are not addressed."

2.1 "Right to counsel" in immigration and refugee matters

"It is widely recognized that individuals who are involved in complex legal proceedings generally require some form of counsel to enable them effectively to exercise their legal rights.

Legal proceedings affecting immigrants and refugee claimants can have profound, life-altering implications for the individuals involved in them.

For immigrants, these proceedings determine their right to become and remain permanent residents in Canada and to bring other members of their family to live with them in Canada.

For refugee claimants, the proceedings determine whether they will be granted asylum in Canada or will be returned to a country where, they allege, they face risk of persecution, cruel and inhumane treatment or punishment, and possibly even torture or death.

As newcomers to the country, often not speaking either of Canada's official languages, many immigrants and refugee claimants need assistance and counsel to navigate their way through the complexities of the Canadian legal system.

The principle of "right to counsel" is widely recognized in Canadian law. In a situation where an individual is subject to arrest and detention, section 10(b) of the Charter of Rights and Freedoms (the Charter) provides a constitutionally guaranteed right for the person "to retain and instruct counsel and to be informed of that right."

In the civil law context, the Supreme Court of Canada has held that the principles of fundamental justice require that persons be provided with state-funded counsel if they cannot afford to retain counsel on their own in circumstances where rights protected under Section 7 of the Charter are affected by the actions of state agents (New Brunswick (Minister of Health and Community Services) v. G.(J.))[4] .

In the context of legal proceedings affecting immigrants and refugee claimants, section 167(1) of the Immigration and Refugee Protection Act (IRPA)[5] provides that "… a person who is the subject of Board proceedings … may, at their own expense, be represented by a barrister or solicitor or other counsel." [emphasis added]

Exercise of the statutory right to counsel in cases involving immigrants and refugee claimants is limited to situations where the persons concerned are able to pay for such counsel. As a practical matter, however, many immigrants and refugee claimants, in particular refugee claimants, do not have substantial financial resources, so the exercise of their right to counsel is largely dependent on the availability of legal aid."

2.5 Tariff variations

"Amounts paid for representation services in immigration and refugee matters vary widely under the different legal aid tariffs.

For example, lawyers in Quebec are limited to a flat fee of $170 for preparing a refugee claim involving a single claimant. They can charge $50 more for each additional family member included in the claim. This amount covers all time spent interviewing the claimant and other witnesses, if any, and time spent to prepare and file the claimant's Personal Information Form (PIF).

Lawyers can charge $285 for the first day of a hearing into the claim, plus $150 for each additional half-day. If the panel requests written submissions, a lawyer can bill an additional $150 (Commission des services juridiques, 2000). The legal aid authority has discretion to pay more than the amount prescribed in the tariff, but supplementary payments are authorized only in cases where a lawyer can make a strong case for receiving such payment (Diane Petit, personal communication, September 8, 2002).

The Manitoba tariff, which is also based on a hybrid of an hourly rate and flat fees for particular services, provides $480 for preparation and the first half-day of attendance for a refugee hearing at the Refugee Protection Division of the IRB.

This is based on a nominal allowance of 10 hours total working time at a rate of $48 per hour, but, for all intents and purposes, it is a flat fee because it is virtually impossible to complete the required work within 10 hours. The Manitoba tariff provides for payment of a further $135 for each additional half day of hearing, including all preparation and attendance (Gerry McNeilly, interview, July 29, 2002).

The tariffs in Ontario, Alberta and British Columbia, which are all based on a prescribed hourly rate with maximum allowances for specific tasks, are considerably more generous.

For refugee claims, as an example, Legal Aid Ontario allows up to 16 hours preparation time, plus actual time spent at the hearing (Legal Aid Ontario, 2001: 3). Hourly rates in Ontario range from $70.35 for lawyers with less than four years experience at the bar to $87.94 for lawyers with ten years experience (Legal Aid Ontario, 2002a).

The comparable tariff in Alberta allows up to 25 hours in total for all hearing preparation and attendance, at an hourly rate of $72 (Pat Bard, e-mail to Austin Lawrence, March 1, 2002).

The British Columbia tariff allows up to 10 hours general preparation plus 5 hours for hearing preparation (e.g., client interviews) and actual time spent at the hearing.

The hourly rate under the LSS tariff in British Columbia is $80, but this is subject to a 10 percent holdback. (Legal Services Society, 1999: 3-4). The LSS has announced that it will replace tariff holdbacks with a 10 percent reduction to all tariffs in the 2002-03 fiscal year (Legal Services Society, 2002f: 7).

Newfoundland and Labrador, the only other province that provides legal aid coverage for immigration and refugee matters, relies exclusively on staff lawyers to provide the required representation (Nick Summers, interview, May 25, 2002).

Legal Aid Manitoba, which in other areas of law makes extensive use of staff counsel, issues legal aid certificates to lawyers in private practice for all immigration and refugee cases (Gerry McNeilly, interview, July 29, 2002)."

3. Need for representation (continued)
3.2 Refugee determination proceedings

3.2.1 Preparation for refugee hearings

"Eighty-six respondents commented on refugee claimants' need for assistance in preparing their PIFs and getting ready for the hearing into their claim[14] . No one suggested that claimants do not require any assistance or representation to prepare for their hearings. See Table 2."

Table 2: Type of Representation Required to Prepare for Refugee Hearings

"Sixty-two of the 86 respondents who commented felt that because of the potentially complex legal issues involved and the need to make sure that all critical points are addressed in the PIF, a lawyer has to be involved at the case preparation stage, at least in a supervisory capacity. Twenty-nine of these respondents felt that much of the preparation could be handled by a trained paralegal under a lawyer's supervision, but many of these insisted that a lawyer must assume final responsibility for drafting the narrative setting out the details of the claim. Thirty-three respondents felt that claim preparation should be handled entirely by lawyers.

Many of the respondents felt strongly that the person who is representing the claimant at the hearing must also be actively involved in preparing the claimant for the hearing. They suggest that this early involvement is essential to establish trust between the representative and the claimant, and to ensure that the claimant understands and will be ready to answer clearly and truthfully the type of questions that likely will be asked. Those respondents who believed that representatives at refugee hearings must be lawyers felt equally strongly that lawyers must be actively involved in case preparation.

Twenty-four respondents indicated that a trained, experienced paralegal or immigration consultant could handle case preparation, without any stipulation that the person be supervised by a lawyer. It is not clear what level of training these respondents have in mind. The emphasis appears to be more on familiarity with the refugee determination process than on legal training in any formal sense. For some of these respondents, experienced caseworkers at NGOs would be suitable for helping claimants draft their PIF and preparing claimants for their hearing. Others felt that some explicit training on the legal principles involved in refugee determination is required."

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."

Factors influencing choice of representative

14. Conclusion

"This study was undertaken to examine the need that immigrants and refugee claimants have for assistance and representation in relation to legal proceedings under the Immigration and Refugee Protection Act.

From responses received in interviews with over 140 respondents who have direct experience in these proceedings, it is evident that the persons who are the subject of the proceedings do need assistance and representation at various stages in the legal process.

The level of knowledge that most immigrants and refugee claimants have is extremely limited with respect to the Canadian legal system and with respect to the substantive law applicable to their particular situation.

When they present their refugee claims, most refugee claimants have limited or no ability to function in either of Canada's official languages. Because of language difficulties and lack of familiarity with even the most basic elements of the Canadian legal system, refugee claimants, in particular, are poorly placed to benefit from forms of assisted self-representation that have been used to good effect in other areas such as family law (Frecker, 2002: 28).

It is therefore unrealistic to think that these individuals have the capacity to participate in legal proceedings under the IRPA without some form of assistance and/or representation from third parties."

To read the whole study please download the PDF file file attached to this web page!

Milorad Borota,
Mar 28, 2012, 8:58 PM