Representation for Immigrants and Refugee Claimants

12. Representation and fairness of processes

Views regarding the need for representation in proceedings affecting immigrants and refugee claimants were very much influenced by respondents' assessments of the impact that presence or absence of representation has upon fairness. The proceedings in question significantly affect the rights and interests of the immigrants and refugee claimants involved. These proceedings are, therefore, assumed to be subject to the rules of natural justice, which require a hearing, unbiased adjudication and a fair procedure.

The traditional view in administrative law jurisprudence is that natural justice does not extend to ensuring that any particular process is substantively fair. Natural justice requirements, being rooted in common law principles, are subject to being overridden by express statutory provisions that may be read as limiting procedural fairness in a particular context (Hogg, 1997: section 44.10(a)). However, Section 7 of the Charter of Rights and Freedoms provides that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Section 2(e) of the Canadian Bill of Rights provides that "… no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations." The Immigration and Refugee Protection Act, being federal legislation, is subject to the Canadian Bill of Rights. Also, proceedings under the IRPA that might result in deprivation of life, liberty or security of the person concerned must be conducted in accordance with the principles of fundamental justice (Singh v. Minister of Employment and Immigration (1985)).

The concept of "fundamental justice" is generally viewed as being synonymous with procedural fairness or natural justice. But, in the B.C. Motor Vehicle Reference (1985), the Supreme Court of Canada has gone beyond this narrow view and has held that Section 7 of the Charter prohibits substantive as well as procedural injustice in proceedings that may lead to deprivation of life, liberty or security of a person (Hogg, 1997: section 44.10(a)). Thus, proceedings under the IRPA that affect life, liberty and security of the persons concerned must presumably be both substantively and procedurally fair.

As respondents have noted, there are many circumstances in which immigrants and refugee claimants do not understand the issues or the nature of the proceedings. They need assistance or representation from a third party to present their case in a coherent manner. In these circumstances, one might reasonably conclude that such assistance or representation is a necessary element to ensure that the process is fair and that it is conducted in accordance with the principles of fundamental justice.

All respondents acknowledged the need for fair procedures. Most respondents acknowledged that, in a broad sense, processes affecting immigrants and refugee claimants in Canada, including the overall process for determining refugee claims in Canada, are fundamentally very fair. However, as is evident from the discussion in Section 3 above, they differed in their assessments of what type and what level of assistance and/or representation are required to ensure fairness in each of the processes under review. From an overview of responses to the interviews as a whole, there appeared to be a consensus among respondents that the need for representation increases as the proceedings become more complex. Respondents also generally agreed that the need for representation increases as the consequences of what transpires at proceedings become more definitive. That is to say, there is greater need for the affected parties to have representation in proceedings that are going to result in a final decision affecting their rights than there is in interim proceedings that do not result in a final decision. Also, where issues of a legal, as opposed to a purely factual nature must be dealt with, respondents agreed that the need for legal representation increases accordingly. However, respondents differed widely in their individual assessments of the complexity and consequences of the issues dealt with in various proceedings in which immigrants and refugee claimants are involved. The respondents' differing assessments of what sort of representation is required appeared to be rooted in differing assessments of the nature, complexity and consequences of the various proceedings, rather than in any fundamental difference of opinion regarding the importance, in principle, of access to representation as a component of a fair process.

Most service providers and all of the claimants and appellants interviewed for the study felt that effective representation can have a significant impact on the outcome of proceedings. Decisionmakers and hearing participants were divided in their assessment of whether presence or absence of representation affects outcomes, although they strongly agreed that it does have an impact on the way in which proceedings are conducted. Almost all of the respondents agreed that access to competent representation is an important component of fairness, but respondents from CIC and IRB were more inclined than were the claimant and service provider respondents to qualify this view and to suggest that the process can still be fair without representation. A majority of the CIC and IRB respondents felt that, for routine cases that do not raise complex legal issues, there are sufficient safeguards in the system to ensure a fair process even if the persons concerned are not represented. They also felt that they play an important role in ensuring that proceedings remain fair, even in circumstances where the person concerned is not represented.

The provisions in the IRPA that require hearings before an independent decisionmaker, and that provide persons concerned with a right to retain and instruct counsel at their own expense, are clearly intended to ensure that processes under the Act conform with the principles of fundamental justice. There was no specific question in the interviews relating to the need for publicly funded legal aid. However, many of the service providers interviewed indicated that the right to counsel is illusory if the persons cannot afford to pay. According to these respondents, the simple reality is that many refugee claimants are subsisting on social assistance [57]. In the early period after their arrival, when their claims are being decided, many claimants do not have the language skills to secure employment that might enable them to pay for counsel. Claimants who are victims of torture, or who are suffering from other post-traumatic stress, may not be emotionally and psychologically capable of searching for and engaging in gainful employment for many months after their arrival, even if such work is available for them. It is clear from comments made by the great majority of refugee claimants and service providers who were interviewed for this study that they believe availability of publicly funded legal aid for refugee claimants who cannot afford to retain counsel on their own is critical to maintaining a fair refugee determination process [58]. These respondents appeared to view the situation faced by refugee claimants as similar to that which applied in the New Brunswick (Minister of Health and Community Services) v. G.(J.) case, decided by the Supreme Court in 1999. In that case, the Court held that a fair hearing could not take place if the mother did not have legal representation. Since she did not have the financial means to hire counsel, the Court concluded that, under Section 7 of the Charter, she had a right to state-funded legal counsel.

Very few respondents from CIC or the IRB expressed any view with regard to the need for publicly funded legal aid. This may be an indication that they did not accord the same importance to the issue of public funding for representation as did the claimant and service provider respondents, but one cannot safely draw that conclusion from the absence of comment on this issue. The issue of public funding for legal representation is a matter of public policy. Because of their respective roles within the system, CIC and IRB respondents may also have been reticent to comment on this issue, particularly since there was no direct question eliciting opinions on the matter.

12.1 Ensuring fairness for persons without representation

Immigration officers who conduct admissibility and eligibility interviews indicated that they carefully explain the process and take steps to ensure that the persons they are interviewing understand why the interview is being conducted and what use will be made of the information provided. Fifteen of the 18 claimants who passed through these interviews confirmed that the officers who interviewed them did explain the process in a way that they understood. Four of the 18 felt that they had been badly treated by immigration officers when they were first interviewed. Three of these claimants indicated that the officers who interviewed them treated them very brusquely and provided no explanation about the process or how they should proceed. The other one indicated that the officer who interviewed him provided a clear explanation of the process, but he felt that the officer was simply rude. All of the other claimants felt that the immigration officers who had interviewed them treated them well.

Service providers were less confident that the measures taken by the interviewing officers are adequate to ensure that the interviews are conducted fairly. Many of the service providers who felt that it is necessary for claimants to have access to independent advice before the interview, and to have access to representation at the interview if they so desire, stated that immigration officers conduct these interviews in an intimidating and overbearing manner. These respondents saw access to representation at all stages of the process as a necessary safeguard to ensure fairness and to protect vulnerable claimants from possible intimidation. The concern that unrepresented claimants might feel intimidated at eligibility and admissibility interviews was not shared by service providers. They indicated that provision of access to independent information and advice prior to the interview is sufficient to ensure fairness at that early stage in the refugee determination process.

Ensuring fairness for unrepresented claimants in refugee hearings is more problematic. Refugee claim officers (RCOs) who were interviewed felt that they play an important role in that regard. They indicated that they try to assist unrepresented claimants by making sure all of the salient points required to establish a refugee claim are addressed at the hearing. However, the RCOs suggested that they feel somewhat constrained as to how far they can go in helping unrepresented claimants present their case. The RCOs indicated that, at the pre-hearing stage, they do advise unrepresented claimants where to go for information, but they do not engage in any pre-hearing discussion with claimants regarding the substance of their claims. As officers of the tribunal, RCOs felt that it would be inappropriate for them to give substantive advice to claimants as to how their cases should be presented.

RPD members stated that they go to great lengths to ensure that unrepresented claimants understand what they must establish to be granted asylum. But these decisionmakers acknowledged that many unrepresented claimants have great difficulty understanding what they are told. IAD members and adjudicators expressed similar concerns regarding the adequacy of the help they are able to provide within the limitations of their roles as independent decisionmakers. As a result, these decisionmakers questioned whether their efforts are sufficient to ensure a fair process.

Three RPD and two IAD members indicated that the manner in which they conduct hearings changes when the person concerned is not represented. These decisionmakers suggested that their tolerance for poorly presented evidence and submissions is considerably lower when they deal with counsel, and that they are less willing to grant adjournments when the person concerned is represented. Adjudicators expressed similar views with regard to how they conduct detention reviews and immigration inquiries when the person concerned is not represented. All of these IRB decisionmakers felt that the presence or absence of representation affected the manner in which they conduct their hearings. They noted that they do not to allow this to affect their assessment of the merits of the case before them. However, they also noted that competent representatives can affect the outcome of cases by ensuring that all of the required evidence is presented and that all of the issues in a case are effectively addressed.

Two CIC respondents who have had experience representing the Minister at inquiries and detention reviews expressed concern about the difficult role they find themselves in when dealing with unrepresented parties. According to one of these respondents, it is inappropriate for the Minister's representative or the decisionmaker to be "wearing two hats." Both of these respondents felt that, for this reason alone, independent representation is needed to ensure a fair process.

  • [57] Service provider and refugee claimant respondents acknowledged that not every refugee claimant is without financial resources. But they felt that the great majority of claimants cannot afford to retain counsel at their own expense when they first arrive and during the critical period in which their claims are heard and determined.
  • [58] This conclusion is based on a reading of the overall comments made by these respondents, rather than on their response to any specific question.
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