Representation for Immigrants and Refugee Claimants
6. Knowledge and sophistication of persons concerned (continued)
6.2 Participants in other processes
Respondents who had direct experience with detention reviews were asked to provide their assessment of detainees' knowledge regarding the reasons they were detained and regarding the procedures and legal requirements relating to review of their detention. Similar questions were asked with respect to knowledge that persons who are the subject of immigration inquiries have regarding the inquiry process, and with regard to appellants' knowledge about the immigration appeal process. Respondents were also asked to comment on the knowledge of failed refugee claimants with regard to post-determination procedures such as judicial review, humanitarian and compassionate applications, and PDRCC landing applications. All respondents were asked to comment only on matters of which they had personal knowledge.
A summary of the responses relating to detention reviews is provided in Table 16.
Of the 20 service providers who commented on detainees' knowledge of the detention review process, 10 indicated that most detainees have a general understanding as to why they are being detained when they first contact service providers. However, according to these respondents, most detainees do not fully understand the explanations regarding the reasons for detention that are provided by immigration officers and adjudicators. Only two service providers felt that detainees have a good understanding of why they are detained. One of these qualified her assessment by stating:
Some know why they are detained; others do not. CIC and possibly the adjudicator may have explained. Some understand the explanations; others do not.
In contrast, eight of the service providers, including the five paralegals who responded to this question and a lawyer in Montreal who works for an NGO that deals extensively with detainees, indicated that the detainees they see generally have very little understanding of why they are detained.
Fourteen of the 18 service providers who commented stated that detainees, on their first meeting with a service provider, have little if any understanding of the procedures and legal requirements relating to review of their detention and how they might secure their release. Three indicated that detainees have a general understanding of the procedures. Only one felt that detainees have a good understanding of the detention review process when they first contact a service provider. Again, this assessment was qualified:
"Some know exactly; others do not have a clue."
The one immigration consultant and seven of the nine lawyers who responded to this question indicated that detainees have a general sense of why they are detained. The other two lawyers felt that most detainees have very little understanding of why they are detained. However, a number of the lawyers commented that persons who are detained awaiting deportation after they have completed a prison sentence for a serious criminal offence generally have a very precise understanding of the reason they are detained and of the procedures and legal requirements relating to detention reviews. The consultant and six of the lawyers felt that most refugee claimants have no understanding of the legal and procedural requirements relating to detention reviews until after they have had a chance to consult counsel.
Two CIC respondents who commented on detainees' knowledge felt that most detainees have a general understanding of why they are detained, but very little understanding of the detention review process. The one other CIC respondent felt that most detainees understand specifically why they are detained and they have a good understanding of the procedures and legal requirements relating to detention reviews. This respondent noted that, while most detainees appear to understand the procedures and legal requirements relating to detention reviews, many of them have absolutely no understanding of the process. The three IRB adjudicators who commented all felt that detainees have a general understanding of why they are detained, but a very limited understanding of the legal and procedural issues relating to detention reviews. One of the adjudicators noted that there is wide variation among individual detainees. The adjudicators felt that some detainees, particularly criminals who are being detained pending removal, have a very clear sense of why they are detained. The adjudicators' assessment was consistent with the overall assessment given by most of the service providers who commented on this issue.
The two individuals who had direct experience as detainees indicated that, from the explanation provided by the immigration officer when they were detained, they had a general understanding why they were detained. They indicated that the explanation provided by the adjudicator at the first detention review hearing had given them a general sense of the procedural and legal requirements relating to the detention review process. Both felt that their understanding was greatly improved after they had an opportunity to consult with a lawyer. One, a refugee claimant from Hungary, was unable to locate a surety to secure his release. When he was interviewed on the day of his refugee hearing, seven months after he made his claim, he was still being detained. The other, a claimant from Albania who spoke fluent English, was held for 35 days and was released after an NGO helped her to obtain counsel. At the time of the interview, both respondents had a clear understanding of the specific reasons why they were detained and of the legal and procedural requirements of the detention review process. The respondents noted that they had acquired this understanding from immigration officers and adjudicators, and from the NGO persons and counsel who assisted them after they were detained.
6.2.2 Persons at immigration inquiries
Only 13 service providers commented with respect to clients' knowledge relating to immigration inquiries. Seven of the eight lawyers, two NGO respondents, and one paralegal indicated that persons concerned have a general understanding of the purpose and potential consequences of the inquiry. The three other service provider respondents, a lawyer and two paralegals, indicated that persons concerned have very little understanding in this regard. One lawyer and one NGO respondent indicated that their clients have a general understanding of the procedures and legal requirements relating to inquiries. The other eight service providers who responded to this question felt that clients have very little understanding of these matters.
The two CIC respondents and the three IRB adjudicators who commented on inquiries were all of the view that persons concerned have a general understanding of the purpose and potential consequences of inquiries, but very little understanding of the legal requirements or of procedural issues. One of the adjudicators noted that entrepreneur immigrants, in particular, are often very confused about the nature and purpose of immigration inquiries.
Responses from individual immigrants and refugee claimants indicate that they have a very low level of understanding about immigration inquiries. The only respondents who acknowledged that they had ever been the subject of an immigration inquiry were the two appellants interviewed, one a Convention refugee and the other a landed immigrant. Both respondents had made successful appeals against removal orders issued at an inquiry after they had served sentences on criminal convictions. The other respondents, including inland refugee claimants who had presumably been through immigration inquiries themselves, had no idea what an immigration inquiry was, and they did not know whether they had participated in one, even after it was explained to them by the interviewer.
Responses regarding appellants' substantive knowledge about their appeal rights and about the decision under appeal, and their knowledge regarding the procedural and legal requirements of the appeal process were very limited (see Table 17). Only 14 respondents provided any comments on this issue. Two lawyer respondents indicated that prospective appellants are considerably more knowledgeable about issues relating to their appeals than clients are about other immigration and refugee-related processes. According to both of these lawyers, most clients who are contemplating an appeal against an IRB or CIC decision have a good understanding of their appeal rights, and of specific aspects of the decision they wish to appeal, when they first contact their lawyer. Only one other lawyer felt that appellants have a good understanding of their appeal rights and the specific decision under appeal. He felt that appellants have only a general understanding of the procedures and legal requirements relating to appeals. The other 11 service providers who answered questions relating to the appeal process indicated that appellants have only a general understanding of their appeal rights and the decisions they want to appeal. Three respondents indicated that appellants have a general understanding of the procedures and legal requirements relating to immigration appeals. Eight respondents felt that appellants' legal and procedural knowledge was very limited. The one Immigration Appeal Division (IAD) member who responded to this question suggested that most appellants have only general understanding both of the substantive issues in their appeal and of legal and procedural requirements. This IAD member felt that unrepresented appellants have a very limited understanding of legal and procedural issues.
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The two appellants who were interviewed for this study both clearly understood the legal and procedural aspects relating to their appeals. But it must be noted that both of these respondents were represented by counsel and that they had already successfully passed their appeals. Both respondents indicated that they relied heavily on their lawyer for advice and information and that they could not have managed their appeals without legal representation.
6.2.4 Participants in post-determination proceedings
Ten respondents commented on failed claimants' knowledge of post-determination options. They indicated that claimants who are represented by lawyers at their refugee hearing generally receive from their lawyers sufficient general information regarding post-determination options to enable them to make informed choices. Six of the respondents mentioned that, under the Immigration Act, unrepresented claimants usually had general information about PDRCC because notice of this option was included with the Notice of Decision received from the IRB. However, respondents felt that unrepresented claimants' understanding of judicial review and humanitarian and compassionate applications is very limited. These respondents also indicated that unrepresented claimants' understanding of the legal and procedural requirements relating to all post-determination options is very limited.
Respondents could not comment with regard to the pre-removal risk assessments (PRRA) since they had no experience with this process when the interviews were conducted. Individuals whose claims are rejected by the RPD receive information about the PRRA with the RPD's Notice of Decision. They receive a second notification regarding the PRRA when removal from Canada is imminent. With this double notification, claimants should be better informed about the PRRA than they have been in the past with respect to other post-determination options. But this additional information cannot be considered a substitute for the more specific advice and assistance claimants might receive from counsel.
-  The specific questions regarding knowledge about the detention review process were:
"1) What do [persons who are detained by immigration authorities] know about the reasons why they have been detained? 2) What do they know about the procedures and legal requirements relating to review of their detention? 3) What do they know about obtaining counsel?"
-  The specific questions regarding knowledge of the immigration inquiry process were:
"1) What do [persons who are subjects of immigration inquiries] know about the purpose and potential consequences of the immigration inquiry? 2) What do they know about the procedures and legal requirements relating to the immigration inquiry? 3) What do they know about obtaining counsel?"
-  The specific questions regarding knowledge about the immigration appeal process were:
"1) What do [appellants] know about the decision to be appealed? 2) What do they know about the procedures and legal requirements relating to the immigration appeal? 3) What do they know about obtaining counsel?"
-  The post-determination application process for landing members of the PDRCC class has been eliminated under the IRPA because persons in this class are now included within the definition of
"persons in need of protection"under section 97(1)(b) of the IRPA and their status is determined by the RPD at the refugee determination hearing. Most of the interviews were conducted prior to implementation of the IRPA on June 28, 2002, so respondents were not questioned regarding claimants' knowledge regarding the PRRA process. The specific questions relating to post-determination proceedings for refugee claimants were:
"When unsuccessful refugee claimants receive notice that their claim has been rejected: 1) What do they know about possibilities to have the decision judicially reviewed? 2) What do they know about the possibilities of filing a PDRCC application or an H&C appeal? 3) What do they know about the procedures and legal requirements relating to judicial review, PDRCC and H&C appeals? 4) What do they know about obtaining counsel for these proceedings?"
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