Representation for Immigrants and Refugee Claimants
3. Need for representation
3.1 Admissibility and eligibility interviews
The views of respondents were sharply divided on the issue of whether there is any need for assistance or representation at admissibility and eligibility interviews. The question of right of representation at these interviews, when conducted at the port of entry, was addressed by the Supreme Court of Canada in Dehghani v. Canada (Minister of Employment and Immigration) (1993). The Court held in that case that the purpose of port-of-entry interviews is to aid in the processing of applications for entry to Canada and to determine the appropriate procedure for dealing with applications for Convention refugee status. Accordingly, the persons concerned are not detained in the sense contemplated by section 10(b) of the Charter of Rights and Freedoms and the eligibility or admissibility interviews are not analogous to a hearing. According to this Supreme Court decision, the principles of fundamental justice do not include a right to counsel in circumstances where an interview is held for routine information-gathering purposes.
In current practice, persons being interviewed at ports of entry are generally not permitted to have a representative at the interview. Persons who make an inland claim, that is, persons who claim refugee status after entering Canada, can be accompanied at the interview, but the accompanying person is generally not permitted to play any active role as the claimant's representative. The manager of the CIC inland office in Montreal estimated that representatives do accompany inland claimants at inland interviews in approximately 5 percent of cases. Respondents from other regions did not provide any estimates in this regard.
A summary breakdown of responses regarding need for representation at these interviews is presented in Table 1. When reading Table 1 and the other tables that follow, it should be noted that the number of respondents reported in each category does not always match the number of persons interviewed, since individual respondents did not answer every question. It must also be borne in mind that the respondent sample is not statistically representative. Therefore caution should be exercised in interpreting the reported distribution of responses.
In accordance with the decision of the Supreme Court in Deghani, all of the CIC respondents held that claimants have no right to counsel at admissibility and eligibility interviews. They also believed, given the short time frame in which the interviews must be conducted, that it would not be operationally feasible to allow representation, especially at interviews conducted at ports of entry. All 20 of the CIC respondents who commented on this issue felt that there is no need for representation at admissibility and eligibility interviews because they are conducted simply to gather basic factual information. In their estimation, no decision is made at these interviews that might adversely affect claimants' rights. They noted that the threshold for eligibility to have a refugee claim determined by the RPD is so low that virtually every claim received is found eligible to be referred to the RPD. Three CIC respondents felt that it might be helpful for the persons concerned to have access to independent advice before the interview, and they suggested that there could be a role for NGOs in this regard. Six of the CIC respondents thought that, while representation at the interviews is unnecessary, it is important for refugee claimants to have access to advice after the interview so they are properly informed on how to go about locating counsel and preparing their claim for the IRB. These same six and one other CIC respondent suggested that where the person concerned is an unaccompanied minor, or otherwise has difficulty understanding the questions that are asked, it can be helpful to have a friend or family member accompany them to the interview.
One CIC respondent indicated that, in cases involving issues of serious criminality, it may be helpful for the person concerned to be represented by a lawyer. But this comment was made with reference to interviews conducted at inland CIC offices. It may not have been intended to cover port-of-entry interviews. The perspective of CIC personnel is clearly summed up in this statement from an officer involved with inland claims:
There are few instances where any representation is needed at eligibility or admissibility interviews. Someone prone to confusion and persons with low levels of intelligence, unable to even provide their correct address and telephone number, do need the help of a family member or friend. This is quite common at inland offices. Professional, paid assistance is almost never needed. Where there are no family members or friends, an NGO representative might be helpful. Frankly, it is often the interpreter who is the most helpful to everyone involved.
According to the CIC regional managers interviewed for this study, currently all refugee claimants are interviewed by an immigration officer. CIC no longer relies on mail-in responses to determine claimants' eligibility to have their claims referred to the IRB. All regional managers stated that port-of-entry interviews and inland eligibility interviews are essentially the same. The interviewing officer asks the same questions in both instances. Differences that do arise are primarily because of logistical considerations such as limited availability of interpreters at remote ports of entry. One senior officer at an inland office expressed the opinion that inland interviews need to be more intensive
"because they [i.e., persons at inland interviews] have already lied once to get into the country." But the other CIC respondents did not give any indication that they draw a similar distinction between the inland and port-of-entry interviews.
All but one of the CIC managers interviewed emphatically stated that officers do not interrogate claimants on the substance of their claims when conducting admissibility and eligibility interviews. As one of them described this aspect of the interview:
The claim-relevant question is limited to: 'What is the basis of the claim?' Officers are told to just ask that question and write down the answers, nothing more.
According to another manager:
We are trying to get them [immigration officers] to raise basic questions about the reasons for the claim. The IRB has indicated that this is helpful. If you don't ask these questions, there is a risk that some claimants may not make it clear that they are seeking protection.
And a third CIC manager was more specific:
We don't get into the substance of the claim during our interview. We limit ourselves to asking three short questions: 1) Why have you left your country? 2) What do you fear in your country? 3) Why do you not want to return to your country? … We only want short responses and we have to interrupt them when they say more.
The regional manager in Vancouver was a little less emphatic than his colleagues. He indicated that officers sometimes do question claimants on the substance of their claims, but only if this is necessary to get at issues of security.
Opinions of respondents from the IRB were generally in line with those expressed by respondents from CIC. They saw little if any need for claimants to have any representation at admissibility and eligibility interviews. However, some IRB respondents did suggest that it could be useful to have some form of duty counsel or NGO person available at ports of entry to provide basic advice and to monitor interviews without providing active representation. One RPD member interviewed for the study did suggest that under the IRPA, more active representation may be needed at eligibility interviews because it is more likely than before that claimants may be found on security grounds to be ineligible to have their claims determined by the RPD. On the other hand, an official from CIC has pointed out that the more intensive security screening put in place following the terrorist attacks of September 11, 2001 has not resulted in any significant increase in the number of refugee claims found to be ineligible for referral to the RPD. Under the IRPA, claims have to be referred to the RPD within three days. The short turnaround provides little time for officers to conduct in-depth interviews. It is possible that even fewer claims may be determined ineligible as a result.
In contrast to the views expressed by CIC and IRB respondents, 38 of the 51 service providers who responded stated that refugee claimants need representation at admissibility and eligibility interviews. They felt that this need is heightened under the IRPA, because there is an increased possibility that claimants may be found ineligible and because notes from the interviews form part of the evidentiary record in subsequent proceedings. Of those who felt that representation is required, five suggested that representation is required in any case involving complex issues relating to eligibility or possible detention, as well as in cases involving unaccompanied minors or severely traumatized or illiterate claimants. Four of the service providers felt representation is required at eligibility interviews but not at routine admissibility interviews. Seven service providers, including six of the 26 lawyers who were interviewed, favoured some form of duty counsel, and five others felt that availability of advice is sufficient. Only one service provider respondent, a volunteer at an NGO, felt that representation is not needed at admissibility and eligibility interviews. This respondent suggested that interpreters at these interviews should play a more active role in clarifying matters for claimants, should the need arise.
Among the 38 service providers who felt that representation is required for admissibility and eligibility interviews, 17 suggested that lawyers should provide the required representation. Nineteen respondents felt that paralegals or experienced immigration consultants could provide the required representation, at least in cases that do not involve complex legal issues - such as issues under section 101(1)(f) of the IRPA relating to possible inadmissibility on grounds of security, violating human or international rights, serious criminality or organized criminality. Two felt that NGO personnel could provide the required representation.
The CIC managers reported that, since implementation of the IRPA on June 28, 2002, immigration officers across the country have been conducting eligibility interviews using a standard set of questions. The manager of one inland office indicated that the practice in that particular office is for the officer to note the responses on computer and to provide a copy of the notes to the claimants and to the IRB at the end of the interview. Another CIC regional manager indicated that officers provide the claimant with a copy of the interview notes if requested, but not otherwise. Since no other respondents mentioned this particular detail, it is not clear whether there is any standard practice in this regard across the country.
There is some confusion on the matter of the duration of interviews. According to a CIC manager in Winnipeg it depends on the individual immigration officer. Some officers prided themselves on getting through each interview in as short a time as possible, while others took pride in conducting more in-depth interviews. This manager estimated that the interviews range from half an hour to three hours. He acknowledged that interviews might take longer than three hours in exceptional case, but he felt that would be rare. Other CIC respondents indicated that the interviews take up to three hours, but they did not specify whether interviews of this length are typical or exceptional. A CIC manager in Toronto estimated that, on average, the entire interview process, including time to complete the required paperwork, is approximately four hours. It is not clear whether the time estimates provided by other managers include the time that officers take to write up their interview notes.
Time estimates provided by claimants and by service providers who occasionally accompany claimants, particularly at inland interviews, were somewhat longer than the estimate of up to three hours indicated by respondents from CIC. One NGO respondent from Montreal suggested that it is not uncommon for individuals to be interviewed for up to eight hours and some other service providers indicated that interviews of up to four hours are not uncommon. However, these comments were not offered by way of an estimate of the typical duration of eligibility and admissibility interviews. Given simple resource constraints, it is highly unlikely that many interviews last more than three hours. It is possible that people who speak of interviews lasting much longer than that are including the time that the claimants are required to wait between the actual interview and the meeting with the immigration officer to be informed of the outcome.
At one level, the lack of consensus regarding duration of admissibility and eligibility interviews is immaterial. The real issue is what questions are asked at these interviews. CIC respondents felt strongly that the questions are necessary to determine eligibility and that they do not touch on the substance of the individual refugee claims. Many NGO respondents and lawyers, on the other hand, were convinced that the questions touch on the substance of the claims in a way that can be highly prejudicial, especially considering that the officer's report from the interview forms part of the record in subsequent proceedings. It is this fundamental difference in perception that underlies the sharp division of opinion between CIC and IRB respondents on the one hand and service provider respondents on the other.
All respondents agreed that representation is unnecessary at routine admissibility interviews where the person concerned is simply a visitor and not a potential refugee claimant. However, service providers were strongly of the view that persons who are subject to admissibility interviews should, at a minimum, be afforded the opportunity to seek advice regarding their options before the officer finds the person inadmissible and issues a removal order, which renders the person ineligible to make a refugee claim.
A number of service providers, particularly lawyers, noted incidents where individuals with apparently strong refugee claims have been found inadmissible before they could make their claim. One lawyer mentioned a case that he currently has before the Federal Court. The immigration officer in that case viewed two Romanian stowaways as economic migrants and did not acknowledge their request for refugee status. Their case came to light only by luck, because another detainee at the remand centre, on hearing the claimants' story, got a message to a friend who called the respondent. The respondent has secured stay of removal pending judicial review of the immigration officer's decision. Other respondents mentioned other specific examples, including the high-profile marine arrival cases in British Columbia in 1999. In that instance, a number of individuals who were initially found by immigration officers to be inadmissible managed to have that decision reversed after filing a judicial review application. Some of these claimants were subsequently determined to be Convention refugees. The respondents who noted these incidents suggested that it is the exception rather than the norm that refugee claimants in this situation have access to any legal recourse before they are removed from Canada. The respondents feared that, in most instances where an immigration officer issues a removal order before a refugee claim is made, the person concerned is forced to leave the country without ever having an opportunity to obtain legal advice.
There is no clearly discernable regional variance in the service providers' responses with regard to need for representation at admissibility and eligibility interviews. However, with regard to type of representation required, a majority of NGO respondents from Quebec expressed a preference for legal representation, whereas their counterparts in other provinces were more inclined to view representation by a non-lawyer as sufficient.
The preference of some service provider respondents for legal representation at admissibility and eligibility interviews was rooted in their belief that immigration officers question claimants on the merits of their claim at these interviews, despite assurances from CIC managers that this is not the case. Since the notes from the interview form part of the record in future proceedings, these respondents saw the interviews as a critical step in the refugee claim determination process. As one lawyer from Vancouver described this concern:
Basically, the refugee claim is finished at the eligibility stage. If claimants damage their credibility at this stage, they are sunk. … All aspects of the claim are explored. There is a strong need for representation by a capable person who is familiar with all aspects of a refugee claim. … Representation has to be professional, ethical and motivated by the right reasons. It has to be a lawyer throughout the process because you never know when the law is going to come up.
Concerns in this regard are particularly heightened since the incidents of September 11, 2001. As stated by one NGO representative from Montreal:
As for the need for representation, before September 11 there weren't too many problems. Now, many of the officers are trying to secure the border in anticipation of measures in the new Act [IRPA]. For the inland interview, since 9/11 it's a drama. Everything has changed. Before, it [the application] was made in writing and five days later the person could get the kit for social benefits. Some were called for verification interviews, but for the most part it was yes. Now there's an interview for everyone. To deal with the huge numbers, they've taken officers with little training, who improvise, and who, at least at the outset, are questioning claimants on their entire story. [translation]
Another respondent, a lawyer from Vancouver, made a very similar comment:
Since 9/11 there is much talk about the basis of the claim. As long as there is such extensive inquiry into the claim, representation is needed. Clients are unable to articulate their full stories by themselves.
An NGO respondent from Montreal who has attended many eligibility interviews described the interview process as follows:
The officers, by their questions, do touch on the basis for the claim, even if the claimant has not yet seen their lawyer. At the outset, they ask [the claimant] to reply briefly, by a Yes or No, to the five Convention criteria (fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion) without any help to understand the sense accorded to these criteria by the IRB or the courts. Someone coming from a civil war situation doesn't know the sense that one will attribute to his response; the same for a woman fleeing violence against which she has no protection. [translation]
When one considers the observation of some CIC managers that claimants often spontaneously give extensive details of their claim, even when they are asked to provide only brief answers, it is easy to see how the perspective of the two groups of respondents diverge. From CIC's perspective, the questions are very straightforward. There is little immigration officers can do if claimants insist on providing details about their refugee claim. From the perspective of people who provide support services to claimants, however, the questions posed by immigration officers are technical and hard for claimants to understand. As such, these respondents saw the eligibility and admissibility interviews as a potential trap for claimants who are not properly informed. Since the responses claimants give in these initial interviews follow them through the process, and often give rise to serious credibility issues when the refugee claim is heard by the RPD, many claimant advocates felt that it is essential for claimants to be represented at the interview.
Even if the interviews typically take much less than three hours, the service provider respondents did not accept that they are as limited in scope as the CIC managers suggest. In the context of heightened security concerns that have prevailed since September 11, 2001, it is to be expected that some of these interviews touch on substantive issues relating to refugee claims. The officers who conduct the interviews must determine whether the claims are eligible to be referred to the RPD for a hearing. In many cases, eligibility turns on issues such as the claimant's alleged affiliation with a political faction or group that may be suspected of being involved in terrorist activities. Where claimants indicate that criminal charges and convictions in their country of origin are part and parcel of the alleged persecution, the immigration officer may have to delve to some depth into substantive issues relating to the charges - to ascertain whether the matter should be sent for an inquiry before an IRB adjudicator so a decision can be made on admissibility, considering a criminal conviction. As a practical matter, it can be difficult for an officer to understand what a claimant is saying regarding alleged persecution without asking for some elaboration.
A number of service providers expressed concerns about the attitude manifested by some of the immigration officers who conduct admissibility and eligibility interviews. For example, one NGO respondent stated:
Immigration officers often adopt an attitude of an adversary, even when we are there. Because of this confrontational approach, the presence of a lawyer is necessary. [translation]
A consultant commented:
They [refugee claimants] arrive in a country where they hope to receive protection, and they live in fear of failure. At times, immigration officers are going to exacerbate this fear by making threats to get answers to their questions. We have noted that when we are present to accompany the claimant, the officer's tone drops a notch. [translation]
Another respondent from an NGO that serves immigrants and refugees at a port of entry noted:
At ports of entry, the first CIC representatives people see are uniformed immigration officers. This can be intimidating. While most immigration officers are courteous and respectful, some are disrespectful.
A respondent, who has acted as an interpreter at admissibility and eligibility interviews, described one incident where he was unwilling to translate what the officer said because he felt that it was abusive. Another interpreter, who deals primarily with interviews at Pearson International Airport, said that he found the officers' manner to be
"hostile" in most of the interviews in which he has been involved. He commented that
"most of these poor people must feel they are back in their own country." A third interpreter spoke of cases where immigration officers intimidated people with the threat of lengthy detention, which he said leads many people to depart voluntarily. This respondent suspected that most of the people who leave in this way are not genuine refugees. But it is possible that some people with a genuine need for protection may feel intimidated by the attitude of the immigration officers whom they first encounter upon their arrival in Canada.
A majority of the service providers seemed to have this negative perception of the manner in which admissibility and eligibility interviews are conducted. However, not all service providers shared this view. Many of them indicated that immigration officers are generally very courteous and patient when dealing with claimants in admissibility and eligibility interviews, especially at ports of entry.
Most of the claimants interviewed for this study also did not share these concerns about possible intimidation of by immigration officers. In fact a majority of claimants had no complaints about their admissibility and eligibility interviews. Eight of the 16 respondents who commented on their experience in these interviews indicated that the immigration officers had clearly explained the purpose of the interview and what the claimants had to do to pursue their claims. One of these was upset that the officer had refused to allow him to consult a lawyer before the interview, but he had no complaint about the manner in which the interview was conducted. Two others specifically noted that the officers had been very friendly. In addition to the eight who indicated that the explanations they had received were clear, five other claimants said that the officers had explained the purpose of the interviews, but that they did not understand the explanations given by the officers.
Only four of the claimants felt that they had been treated poorly at these interviews. A claimant from Tibet, who has been accepted as a Convention refugee, indicated that the officer at the port of entry provided basic information, but he felt that the officer was rude. The other three indicated that they had been forced to wait for an inordinately long time, without being given any information and without access to food. One of these respondents, who arrived in Canada over four years ago and was subsequently accepted as a Convention refugee from Iran, described his experience in some detail:
At the airport I identified myself as a refugee but I knew nothing about the process and had no idea of what I would have to prove. I had identity papers for myself and my children that were accepted. I had no idea what was going to happen. I was kept 13 hours at the airport in Toronto with my 10-year old son and 16-year old daughter. It was like a prison. My kids were hungry but we were just given water. They asked many questions and searched us. I was allowed to search my children. I was advised about nothing. I did not know where to go and Immigration people did not give advice. They just said,"Go".
Another point noted by an interpreter from Toronto touches on an issue completely opposite to the concern that immigration officers question claimants on the substance of their claims. According to this respondent, the immigration officers in the interviews he has interpreted never ask about refugee matters. If the person being interviewed does not indicate their desire to make a refugee claim, the question of whether they intend to claim asylum in Canada does not get mentioned at all. This raises the possibility that people who are seeking protection, but who do not know when or where they are supposed to make their claim, may become subject to a removal order before their refugee claim is ever raised.
According to the interpreter, potential claimants will often make their intention to claim asylum known when they are informed of the removal order. This frustrates the officers, who then demand to know why this was not raised earlier. This respondent offered three possible explanations for the delay in making a refugee claim. Many of the claimants explain to the immigration officer that they were answering the questions asked. They were not asked anything about a possible asylum claim, so they said nothing, thinking they had to raise the claim at some other point in the process. Indeed, as a number of respondents confirmed, claimants are often advised by the agents who assist them that they should say as little as possible in the first interview with an immigration officer at the port of entry. In other cases, while the persons concerned are waiting for the senior immigration officer's (SIO's) decision following the interview, they may have heard from other people in the waiting area that they should raise their claim at this time. A third possibility is that the claimants are hoping to be admitted as visitors and they only raise a refugee claim when they are told they are inadmissible. In either case, the basic problem arises because, when they arrive in Canada, the prospective claimants are not well informed as to how they should go about making their refugee claim.
The issue of need for representation at admissibility and eligibility interviews was the subject that drew the most animated and most divergent opinions among respondents interviewed for this study. This is to be expected because it is an area where respondents have sharply differing views regarding the nature and potential consequences of the interviews, and where there is virtually no representation or other assistance currently available to refugee claimants. It is also an area where any significant change in the status quo could have profound operational implications for CIC, and major cost implications for legal aid authorities. While the views of CIC and IRB respondents on this issue appeared to diverge sharply from those of service providers, there was limited agreement among a minority of respondents on both sides of the issue that it could be beneficial to provide refugee claimants with access to reliable, independent advice before they are interviewed by an immigration officer. The CIC and IRB respondents who expressed this opinion were generally more tentative than their counterparts among service providers, who saw access to such advice as a minimum requirement. A majority of the claimants who expressed any opinion on this issue indicated that access to such advice would be welcome and, in most cases, would adequately address their representation needs at that early stage in the refugee determination process. This tentative convergence of views among the different stakeholders suggests that this is a possibility that merits further exploration.
The polarization of opinions between CIC and IRB respondents on one hand and service providers on the other was largely rooted in fundamentally different perceptions regarding the nature and purpose of the admissibility interviews and possible consequences that flow from statements made by claimants at these interviews. From the comments received in the interviews, it appears that the interviews are not as simple and clear cut as has been suggested by many CIC respondents. On the other hand, the fears expressed by many of the service providers also appear to be exaggerated. There may well be instances where, as alleged by some service providers, the interviewing officers are going more deeply into matters relating to the merits of refugee individual claims than is necessary or appropriate at a simple fact-gathering interview. But, if this is the case, it is clearly contrary to the stated direction from CIC management that the interviews should be limited to simple fact gathering.
This is an area where the issue of need for representation turns on what is actually happening on the ground. If the interviews are limited to gathering the basic information needed to determine admissibility and eligibility to have a refugee claim determined by the RPD, one can reasonably presume that principles outlined by the Supreme Court of Canada in the Deghani decision in 1993 still apply. However, if the interviews have become more than a simple fact-gathering exercise, it can be anticipated that the demand for representation at these interviews will increase. Lawyers who represent refugee claimants may initiate test cases to see whether the interviews, as currently conducted, conform to the characterization laid out by the Supreme Court in Deghani.
-  The specific questions relating to need for representation were:
"In your opinion do refugee claimants need assistance of a representative at eligibility interviews conducted by CIC officials? Please elaborate as to why representation is or is not necessary for eligibility interviews. What sort of representation do refugee claimants need at eligibility interviews?"Parallel questions were also posed with respect to foreign nationals' need for representation at admissibility interviews. Most respondents did not draw any distinction between admissibility interviews and eligibility interviews, since the two are conducted concurrently when a person makes a refugee claim at a port of entry. Responses to the questions relating to the need for representation at these interviews are, therefore, recorded together.
-  There is some question whether this is in fact correct. UNHCR observers who have been monitoring port-of-entry interviews report that officers in different regions are asking different questions (Judith Kumin, personal communication, October 3, 2002).
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