Immigration and Refugee Legal Aid Cost Drivers

3. Cost drivers unique to immigration and refugee legal aid (cont'd)

3. Cost drivers unique to immigration and refugee legal aid (cont'd)

3.12 Composition of refugee claim intake in Canada

The composition of the claim intake in Canada is quite different from that in the United States and other industrialized countries. In 2001, three of the top four source countries for refugee claims made in Canada (Hungary, Pakistan, Sri Lanka and Zimbabwe) were not even among the top ten source countries for claims made in the United States or in all industrialized countries other than Canada. Of the four top source countries for claims in Canada, only Sri Lanka ranks in the top ten - at ninth - in the group of other industrialized countries, and it was not among the top ten source countries in United States in that year. Table 1 [48] provides a more detailed comparison of the national origin of refugee claimants in Canada, the United States and all industrialized countries other than Canada in 2001.

Table 1
Countries of Origin of Refugee Claimants And % of Total Claims (2001)
Canada USA All Industrialized Countries (except Canada)
1 Hungary 9% Mexico 16% Afghanistan 10%
2 Pakistan 7% China 14% Iraq 9.5%
3 Sri Lanka 6.5% Colombia 12% Turkey 5.8%
4 Zimbabwe 6% Haiti 8% FR Yugoslavia 5.4%
5 China 5.6% Armenia 3.2% China 3.5%
6 Mexico 3.8% Indonesia 3 % Russia 3.4 %
7 Colombia 3.8 % India 2.9 % Iran 2.8 %
8 Turkey 3.7 % Ethiopia 2.5 % Somalia 2.6 %
9 India 3.3 % Somalia 2.5 % India 2.5 %
10 DR Congo 2.8 % Albania 2.4% Sri Lanka 2.3%

Source: CIC and UNHCR

Over the past six years, Canada has experienced three separate surges of asylum applications from unexpected sources. In 1996 and 1997, there was a sudden influx of claims from Chile. This was at a time when conditions in Chile were not conducive to producing an exodus of refugees. In 1997-98, Canada started to receive a large number of claims from the Czech Republic, and subsequently from Hungary, neither of which is commonly thought of as producing large refugee outflows in recent years. In 2000-01, Canada received a significant number of claims from Argentina, again in the absence of systematic human rights abuses that might be expected to produce a large refugee outflow. A summary of the number of claims from each of these countries from 1995 to 2001 is provided in Table 2.

Table 2
Claims referred to CRDD : 1995-2001 Chile, Argentina, Hungary and the Czech Republic
Claims referred 1995 1996 1997 1998 1999 2000 2001
Chile 1495 2828 103 49 95 67 90
Argentina 99 89 100 130 438 1452 1454
Hungary 38 64 300 982 1581 1932 3900
Czech Republic 13 144 1230 175 94 60 43

Source: CRDD, Country Reports - 1995 to 2001

The surge in Chilean and Argentinean claims has been traced back to activities of migration agents in these countries, who misled people into believing that they could find easy employment and access social benefits in Canada. The claims from Chile abated sharply when a visa requirement was imposed for travel from Chile to Canada. Likewise, the flow from Argentina has abated in the wake of imposition of a visa requirement on travel from that country to the United States, through which most of the Argentinean claimants have traveled to reach Canada.

Reasons for the surge in claims from the Czech Republic, and subsequently from Hungary, are a bit more complex. In both instances, the initial increase in refugee claims followed media reports in the source countries that painted a very positive picture of life for Roma (Gypsy) immigrants to Canada from these countries [49].

The ongoing hostility which Roma face in their home countries, combined with an easing of restriction on travel to other countries following the collapse of communist regimes in Central and Eastern Europe, led many Roma to migrate to countries in Western Europe. Those who have claimed refugee status in Western Europe have had little success with their claims. The interpretation of Article 1 of the Refugee Convention, as applied in most European countries, requires some form of State involvement or acquiescence in the alleged persecution in order to ground a refugee claim. Since the governments in the claimants' countries of origin officially condemn the mistreatment of the Roma, refugee decision-makers in Western Europe have held that most Roma claimants are not Convention refugees.

In contrast, many of the initial refugee claims from Central European Roma decided in Canada in the mid-1990s were accepted. Canadian jurisprudence interpreting the definition of a Convention refugee does not require active State involvement or acquiescence in the alleged persecution. Based on the evidence received in these early claims, CRDD members, in a substantial number of cases, accepted that the claimants had a well-founded fear of persecution, as opposed to discrimination, and granted the claimants refugee status.

Reports of this development, combined with the media reports of favourable living conditions in Canada, made this country an attractive destination for Roma refugee claimants. The number of claims from the Czech Republic referred to the IRB increased from 144 in 1996 to 1230 in 1997. The flow of claims from the Czech Republic declined precipitously when a visa requirement was imposed in the latter half of 1997. But this was followed by a marked increase in the number of claims from Hungary, rising from 300 in 1997 to 982 in 1998 and reaching a peak of 3900 in 2001. A visa requirement for travel from Hungary was imposed in December of 2001. Since then the intake of refugee claims from Hungary has fallen off sharply.

The pattern observed with respect to the Roma claims appears to run contrary to the observation made earlier in this report that the broader interpretation of the definition of a Convention refugee applied in Canada does not appear to be a factor influencing the number of refugee claims made in this country. However, the fact that the influx of Roma claims continued even when most of the Roma claims were being refused [50] suggests that factors other than prospect of success in establishing a refugee claim strongly influence the choice of people to claim refugee status in Canada. In each of these instances, the most notable common element was the information, albeit distorted, that the claimants had received before coming to Canada, to the effect that good prospects for personal advancement awaited them in this country.

It is premature to draw any firm conclusion from this limited experience. However, it suggests that positive publicity about living conditions in Canada (whether accurate or not), circulated in countries from which people have strong reasons to migrate, acts as a catalyst that affects the number of refugee claims being made in Canada. This phenomenon is likely strengthened when there are agents in the source countries who actively promote Canada as a destination, as was the case with Chile and Argentina. It is also strengthened when a critical mass of refugees from a particular country become established in Canada and act as a draw for their fellow nationals to choose Canada in preference to other possible destinations.

3.13 Legal aid cost implications of the marine arrivals in 1999

The refugee claimants who arrived by boat from China in 1999 are a fourth group of asylum seekers that attracted considerable media attention. While Canada has experienced far fewer organized group arrivals of this sort than have many other countries, including Australia, the United States, Mexico and Italy, the 1999 incident and similar incidents in the late 1980s have had a profound impact on Canadian immigration and refugee policy [51].

The manner in which the 1999 incident was handled is being taken as a model of how to deal with similar group arrivals in the future. This has significant implications for future legal aid costs. The logistics of providing legal aid representation in the 1999 marine arrival cases were greatly complicated by the fact that most of the claimants were detained. Because of the lack of sufficient detention facilities in the lower mainland, the claimants were held at facilities in locations where there were no lawyers with experience in dealing with refugee cases. As a result, the Legal Services Society in British Columbia (LSS) had to cover the added costs incurred by lawyers from Vancouver and Victoria, who had to travel to Prince George and Allouette River [52]. These expenses would not have arisen had the cases been heard in Vancouver. Also, since the claimants were detained for many months, the LSS incurred additional costs to provide legal representation at periodic detention review hearings.

The need to process these claims on a priority basis disrupted the normal flow of work at the CRDD in Vancouver. Most of the CRDD members in Vancouver were assigned to work on the marine arrival cases. Hearings on pending claims were delayed to make way for priority processing of the marine arrival cases. Without detailed empirical study, it is difficult to assess whether this disruption resulted in increased legal aid costs, reduced costs, or whether it was cost neutral. However, the potential cost impact of such disruption is a factor that needs to be borne in mind.

The impact of exceptional events, such as arrival of large groups of refugee claimants by sea, as a legal aid cost driver depends on how Canadian immigration authorities respond. If claimants who arrive in large, organized groups, whether by sea, air or land, are dealt with in the ordinary course, the primary cost implication is related to the number of claimants involved who require legal aid. However, if the government responds with special measures, such as detaining most of the claimants involved, money has to be found to cover the added legal aid costs associated with periodic detention review hearings, as well as the added costs associated with providing legal representation to persons who are being held in secure detention facilities.

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