When seeking to enter Canada people who are not Canadian citizens, status Indians or permanent residents must appear for an examination to determine whether they have a right to enter Canada or are, or may become, authorized to enter and remain in Canada. This examination is also referred to as an admissibility interview. An admissibility interview may be conducted by CIC at a port-of-entry or at an inland office. (See article 18(1) of the IRPA, for more information.)
Also referred to as an "immigration inquiry". If, after an admissibility interview, a person is deemed inadmissible, an admissibility hearing is held at the request of a CIC officer. The CIC officer must provide a report with reasons as to why he or she believes that the person should not be admitted or allowed to stay in Canada to the CIC Minister. If the Minister believes the reasons are well founded, the Minister will then refer the report to the IRB for an admissibility hearing. Reasons may include: security considerations, human or international rights violations, serious criminality, organized crime, danger to public health, financial considerations, misrepresentation, non-compliance with the Act and inadmissible family member. (See articles 34 to 37 of the IRPA, for details.) Admissibility hearings occur at the Immigration Division (formerly Adjudication Division) of the IRB.
Also called a "Convention Refugee". All refugees who seek protection on the basis of Convention grounds are seeking 'asylum'. Strictly speaking, a person who has been judged to meet the criteria set out in the United Nations' Convention relating to the Status of Refugees (1951) and its Protocol (1967). Section 96 of the IRPA defines a Convention Refugee as "a person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution". In the present study, this term is used to distinguish persons determined to be Convention refugees from abroad (i.e. resettled refugees) from those who seek to be determined as Convention refugees from within Canada (i.e. asylum refugees).
The loss of active bar members taking legal aid certificates. This may be caused by more people leaving this kind of practice (through retirement, economic pressures, cynicism) than are entering it (because of student debt, a lack of interest, a lack of a pro bono ethic).
Citizenship and Immigration Canada
This federal government department is responsible for admitting immigrants, foreign students, visitors and temporary workers; resettling, protecting and providing a safe haven for refugees and persons in need of protection; helping newcomers adapt to Canadian society and become Canadian citizens; and, managing access to Canada to protect the security and health of Canadians and the integrity of Canadian laws. Citizenship and Immigration is working with the Department of Justice to provide interim funding for immigration and refugee legal aid. Convention Refugee Determination Division hearing-A refugee determination hearing is a hearing where a Member of the CRDD determines whether a person who seeks refugee status is a bone fide refugee. Whereas refugee determination hearings took place at the Convention Refugee Determination Division of the IRB under the Immigration Act, under IRPA they now take place in what is called the
Refugee Protection Division of the IRB. The IRB has the sole authority to determine refugee protection status of persons making a refugee protection claim within Canada.
Also called a "ministerial danger opinion". Ministerial danger opinions are used to deny access to the refugee program or remove from Canada those who are considered in the Minister's opinion, to be a danger to the public. A CIC officer may have reasonable grounds to believe that a person is a danger to the public. Under Section 55 of the IRPA, a CIC officer may detain a person on this basis and request that the CIC Minister agree that an immigration inquiry be held at the Immigration Division of the IRB (formerly Adjudication) in order to determine if there are reasonable grounds to do so. If reasons are well founded, a report will be provided to the Immigration Division explaining why, in the Minister's opinion, a person is believed to be a danger to the public.
In the past, some people have associated danger opinions to Sections 70 (appeals on removal orders) and 71 (appeals by the Minister on Adjudication decisions) of the Immigration Act. These appeals are heard at the Immigration Appeals Division of the IRB. Under IRPA, danger opinions clearly refer to applications of section A101(2)(b) of the IRPA-prior to an admissibility hearing and 115(2)-after the issuance of a removal order, based on inadmissibility grounds
A CIC officer may arrest and detain a person for three principal reasons: they have failed to establish their identity, they are considered a flight risk and will likely not to appear for a subsequent examination, admissibility hearing or removal from Canada, or they are deemed to be a danger to the public. On entry into Canada, a CIC officer may also detain a person for the purpose of completing an examination, if there are security grounds or violations of human or international rights. (See section 55 of the IRPA, for more detail.)
CIC must notify the Immigration Division of the IRB immediately and within 48 hours after a person is taken into detention, or without delay afterward. The Immigration Division must review the reasons for detention and determine whether to continue the detention or release the person being detained. (See section 57(1) of the IRPA, for details.)
If a person is not released after the initial detention hearing, the Immigration Division must review the reasons within 7 days to determine if detention should be continued, and every 30 consecutive days afterwards. Legal aid plans often make a distinction between a 'detention hearing' (an initial hearing following detention) and subsequent 'detention reviews' (reviews which are held on the 7th day following the initial detention and every 30 days thereafter). A detained person may request a review of detention at any time, if a valid reason can be demonstrated (e.g. new evidence suggesting the person is admissible to enter Canada or eligible to be referred to the IRB for a refugee protection hearing).
CIC conducts interviews with prospective refugee claimants to determine whether the claim is eligible to be referred to the IRB for a refugee protection hearing. The burden of proof rests on claimants to show that their claims are eligible to be referred to the IRB and to answer truthfully to all questions put to them. Under a new provision in the IRPA, a claim must be referred to the IRB within three working days. (See article 101 of IRPA for more details.) Claims that are ineligible include those where refugee protection has already been granted in another country or refused in Canada; a claimant came directly or indirectly to Canada from a country designated "safe third country" where refugee protection could have been claimed; or a claimant has been determined to be a significant threat to security, a violator of human or international rights, a serious criminal or member of an organized organization.
General Advice or Assistance
This kind of advice or assistance contrasts with the types of specific legal counsel often provided by lawyers, it covers such activities as providing basic legal information, information about immigration or refugee processing, information about the rights and responsibilities of individuals and organizations in Canada, as well as possible referral to outside resources.
In this paper the term refers to the United Nations' Convention relating to the Status of Refugees (1951) and/or its Protocol (1967).
Humanitarian and Compassionate Applications
Any foreign national, including refugee protection claimants who are found by the Immigration and Refugee Board not to be a protected person, may apply to remain in Canada on humanitarian or compassionate grounds. For instance, they may be married to a permanent resident and have children born in Canada.
The purpose of humanitarian and compassionate application discretion is to allow flexibility to approve deserving cases not anticipated in the legislation. A person, who has submitted a claim for refugee protection or a legal challenge to a negative decision by the IRB's Refugee Protection Division, may make an humanitarian and compassionate application at the same time. For the purpose of assessing a humanitarian and compassionate application, the applicant's written submissions may contain the information an officer needs to make a decision. Humanitarian and compassionate applications for consideration where a risk of return has been raised will be referred to a PRRA decision-maker (who is a departmental expert in matters of risk).
The old legislation, replaced by the Immigration and Refugee Protection Act on June 28, 2002, governs such issues as immigration to Canada and making a refugee protection claim in Canada.
Immigration and Refugee Board
The Immigration and Refugee Board (IRB) is an independent, quasi-judicial, administrative tribunal with branch offices in five regions across Canada. Its mission is to make well-reasoned decisions on immigration and refugee matters, efficiently, fairly, and in accordance with the law. The IRB is currently composed of four divisions: an Immigration Division (ID), a Refugee Protection Division (RPD), a Refugee Appeal Division (RAD), and a Immigration Appeal Division (IAD).
Immigration and Refugee Protection Act
The Immigration and Refugee Protection Act (IRPA) was proclaimed in force on June 28, 2002 to replace the old Immigration Act. At the time of writing, some of the new provisions of the IRPA have not yet been implemented (such as the Refugee Appeal Division).
The Immigration Appeal Division (IAD) of the IRB makes decisions on sponsorship appeals, removal order appeals, residency obligation appeals, and Minister's appeals. The IAD may allow an appeal and set aside an original decision based on the grounds of an error in law or fact, or of a breach of a principle of natural justice.
In common usage, an immigration consultant is a paralegal who are self-employed or in practice with others to provide advice and assistance to immigrants and refugees as a for-profit, fee-based services. The field is currently unregulated. (See the definition of "Paralegal" for more details.)
If someone is found likely by CIC to be detained, or is likely to be deemed inadmissible or ineligible, he or she is required to appear for an immigration inquiry before the Immigration Division (formerly the Adjudication Division) of the IRB. A member determines if the reasons reported by CIC are well-founded to continue the detention of a person or order their release, or whether they are admissible to enter Canada or eligible to be referred to the RPD of the Board. (See "detention hearing" for more information.)
A refugee claim made to an immigration officer, not at a port-of-entry location but at an inland office, after having been in the country as a visitor, worker, student, etc.
In this context, international tribunals refers to cases being brought to supra-national quasi-judicial bodies, often at the United Nations, such as the Committee Against Torture, the Human Rights Committee, the Inter-American Committee on Human Rights, and Committee on the Rights of the Child. Cases may be taken to these bodies when all Canadian remedies have been exhausted.
Both a claimant and CIC may ask the Federal Court of Canada for leave (permission) to apply for judicial review of any decisions made by members of the divisions of the IRB, or any decision made by a federal public servant. In the case of an unsuccessful refugee protection claim where permission is granted and the judicial review is allowed, the appeal may be upheld and the claim may be returned to the Refugee Protection Division of the IRB for a re-hearing. Judicial reviews are usually decided based on procedural arguments, not ones based on the merit of the case. Eventually, appeals may also reach the Federal Court of Appeal or the Supreme Court of Canada.
Justice Canada, Department of
The mission of the federal Department of Justice is to work to ensure that Canada is a just and law-abiding society with an accessible, efficient and fair system of justice; provide high-quality legal services and counsel to the government and to client departments and agencies; and promote respect for rights and freedoms, the law and the Constitution.
Legal aid plan
In Canada there are twelve legal aid plans, one in each of the ten provinces and three territories. Each of the legal aid plans operates independently, reflecting the fact that Canada is a federal state in which the provinces have responsibility for the administration of justice under the Constitution. Legal aid plans are usually established as independent societies by provincial legislation, and often have a close relationship with both the provincial government and the provincial bar. A legal aid plan is responsible for the provision of all legal aid in their province.
The people at the IRB who make decisions on cases are called members. They are appointed by the Governor in Council.
Someone who acts in a legal capacity-providing information, advice, counsel and/or representation-but is not a member of the bar. Paralegals do not necessarily need to work with a lawyer. They also do not necessarily need to have any legal training. (Many of the paralegals responding to this study were not trained in law, but received on the job training through experience.) The field is currently unregulated.
Legislation in Canada only allows paralegals to provide advice, counsel and/or representation in certain types of cases. The IRPA allows for their practice at any proceeding before the Divisions of the IRB.
Practical usage of the term in the immigration and refugee law area also makes a distinction between immigration consultants (who may be paralegals and do similar work, but are self-employed for profit) and paralegals (who act on behalf of lawyers or whose work is on behalf of an organization and is not-for-profit).
Personal Information Form
Before the refugee hearing a claimant is required to complete a Personal Information Form (PIF) detailing the nature and facts of their claim for refugee protection. The PIF can often be over 30 pages long. In all parts of Canada it is the basis for the refugee determination hearing. The form must meet certain standards of legibility, it must be completed in English or French, and it is the basis for the refugee determination hearing.
Port of entry claim
A refugee protection claim made to a CIC immigration officer when a claimant first arrives in Canada-at certain designated airports, land borders and sea borders.
Post Determination Refugee Claimant in Canada Class
Under the Immigration Act, if claimants received a negative decision from the IRB, but still felt they would be at risk if they returned to their country of origin, they could apply for a determination of whether they are members of the Post-Determination Refugee Claimants in Canada Class (PDRCC). This administrative recourse is now extended to all unsuccessful refugee protection claimants and persons in need of protection as part of the Pre-removal Risk Assessment.
Pre-removal Risk Assessment
The acronym is PRRA. To ensure that people are not sent back to a country where they would be in danger or face risk of persecution people who are placed under a removal order can apply to stay in Canada based on a written application. The basis for the application is on "consolidated protection grounds", thus along with the Geneva Convention, danger of torture and risk to life or risk of cruel and unusual treatment or punishment are also reviewed. (Please refer to sections 112 to 116 of the IRPA for more detail.)
Refugee Appeal Division
Under IRPA, the Refugee Appeal Division (RAD) has been established to decide appeals from decisions made by the Refugee Protection Division. The implementation of the Refugee Appeal Division has been delayed.
Refugee protection claimant
Once someone makes a claim to seek refugee protection status they become a 'refugee protection claimant', informally known as a 'refugee claimant'. Once the IRB has determined a claim is successful, then a person is called a Convention refugee or a protected person, and sometimes is informally referred to as a 'refugee'.
Refugee determination hearing
This is the main stage of the refugee determination process where a(n) IRB member(s) make a 'positive' or 'negative determination' on the refugee protection claim. Under the old process this was a Convention Refugee Determination Division hearing and under the new process it is a Refugee Protection Division hearing.
Refugee Protection Division
Eligible refugee protection claims are sent to this Division of the IRB to be heard at an independent tribunal. Members of the Refugee Protection Division (RPD) of the IRB hear these cases.
Refugee Protection Division hearing
A hearing at the RPD of the IRB where a refugee protection claim is determined. The hearing is generally considered to be non-adversarial. The expedited process is used when a claim appears to be "manifestly well founded". In this process, a claimant is interviewed by a refugee protection officer at the IRB, who makes a recommendation about the claim. If favourable, the claim is forwarded to a member who will decide if it should be accepted without a hearing. A full hearing is held if a claimant is not granted refugee protection at the expedited interview. Full hearings follow the general tribunal process. The process is usually non-adversarial; becoming more adversarial when a representative of CIC participates in the case to argue against the claim. A refugee protection officer assists the member to ensure that credible and relevant evidence is presented. Representatives of the United Nations High Commissioner
for Refugees may observe any hearing. Individuals whose claims for refugee protection are accepted by the IRB may apply to become permanent residents of Canada.
The term "representation" can be defined in a number of different ways. In the legal context is it is often used to refer to counsel by a member of the bar. However, common usage in the area of immigration and refugee law, as well as the Immigration and Refugee Protection Act (IRPA), uses a broader definition. IRPA 167(1) holds that "Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel." "Other counsel" could be a person such as a paralegal, immigration consultant, family member, representative of a refugee organization (e.g. UNHCR), settlement worker, social worker, or even a religious advisor.
Safe Third Country
When a refugee claimant travels from the country of persecution to the country in which they claim asylum they sometimes travel through countries where they would face no persecution and could reasonably have made a refugee claim. The first country where a refugee claimant could have made a refugee claim is referred to as a first country of asylum or a country of first instance of asylum. Subsequent countries where a refugee claimant may make a refugee claim are referred to as safe third countries. A 'safe third' country agreement is one where states agree to accept the return of refugee claimants to the first country of asylum for a determination of their claim and to protect them from return to the location of their persecution.
This is the process and activities that a newcomer to Canada (either an immigrant or refugee) undertakes to join Canadian society. It can include, learning an official language, training and/or obtaining employment, obtaining shelter, learning how to use financial and government services, learning about law and society in Canada, etc. Non-profit and non-governmental organizations exist throughout Canada to assist in this process; they are commonly called 'settlement organizations', many of which receive significant government funding.
A refugee claimant whose case has been selected and processed while they still reside outside of Canada is a "resettled refugee". There are several classes of resettled refugees from abroad. Refugees who are sponsored by private organizations and individuals or are assisted by the Canadian government are referred to as "sponsored refugees".
The word "supervised" in this paper is mainly used to describe the monitoring, review and/or management of the work of paralegals. Supervision might involve everything from a periodic review of policy and practice to direction on components of individual cases, depending on what has been arranged in individual supervisory agreements. There could even be a combination of supervisory activities. For example, a paralegal working at a community organization might have their caseload, office policies and practices periodically reviewed by an administrator at a legal aid plan, while private bar lawyers might also review some individual cases at the paralegal's request.
A refugee claimant who does not posses full, authentic documentation indicating identify, nationality and/or travel route is referred to as 'undocumented'. A claimant can be undocumented for many reasons; they may have had documents stolen, never had access to official documentation, or they may be trying to conceal nationality, identity or route of travel in order to protect themselves from persecution while escaping or to support a fraudulent claim.