Immigration and Refugee Legal Aid Cost Drivers

5. Challenges relating to provision of legal aid for refugee claimants

5. Challenges relating to provision of legal aid for refugee claimants

As previously noted, roughly 90% of all legal aid expenditures relating to immigration and refugee matters are devoted to providing representation for refugee claimants. Refugee claimants arrive in Canada from a wide array of countries and they have special representation needs that distinguish them from other legal aid clients. The sections immediately following examine the extent to which these special needs may be viewed as cost drivers for immigration and refugee legal aid.

5.1 Need for interpreters and translation of documents

Lawyers representing refugee claimants frequently require the services of an interpreter to communicate with their clients, to take instructions, and to gather the information needed to complete the claimants' Personal Information Forms. The IRB pays for interpreters at hearings before all three divisions of the Board. But interpreters required for case preparation and for solicitor-client communications have to be paid by the lawyers or by the clients who retain their services.

In all three Divisions of the IRB, parties are required to provide a certified translation of any document submitted in evidence where the original version is not in one of Canada's official languages (Immigration Division Rules, s. 25(1); Refugee Protection Division Rules, s.28(1), Immigration Appeal Division Rules, s. 29(1)). Wherever possible, the cost for translation and interpretation services is passed on by counsel directly to the legal aid authority as necessary disbursements.

Counsel and legal aid officials have raised strong objections to the requirement that certified translations be provided for all documents filed in evidence, noting that the substantive content of many of the documents is of little probative value. In many cases before the RPD, the only issue with many of these documents, particularly identity documents, is whether they are genuine and whether the identity as disclosed in the various documents provided is consistent. Dates are also of great importance, but much of the detailed content of such documents, which has to be translated at considerable cost, is of very little relevance for purposes of the proceedings. Other documents, such as newspaper articles referring to incidents in which the claimant was allegedly involved, or referring to the claimant by name, are quite lengthy and costly to have translated. Counsel and the legal aid authorities have requested the IRB to relax the translation requirement and to allow interpreters at hearings to read into the record pertinent information from the documents required for purposes of the hearing.

Expenditures for translation and interpretation represent a very large portion of all disbursements made by legal aid authorities with respect to immigration and refugee matters. LSS in British Columbia reports that it paid $907,408 for interpretation and translation relating to immigration and refugee matters in fiscal year 2000-01 (Legal Services Society, 2001a). This represented almost 68% of all disbursements under the immigration tariff or more than 17% of the entire cost of immigration and refugee legal aid for that year. LAO reports that disbursements for translation and interpretation in fiscal year 2001-02 represented 16.4% of the entire legal aid budget for immigration and refugee matters for that year. The Quebec tariff allows only $100 per case for interpretation and translation expenses so clients are forced to rely on volunteer services or have to pay themselves to obtain required certified translations of documents. While experience with this issue varies among provinces because of differences in tariff arrangements, interpretation and translation requirements represent a significant cost driver for legal aid programs in provinces that fully cover interpretation and translation costs.

5.2 Need for medical reports and psychological assessments

Refugee claims, by definition, are based on the allegation that the claimant has a well-founded fear of persecution. Events giving rise to that persecution are sometimes so traumatic in nature that the claimants suffer from post-traumatic stress disorder (PTSD). For claimants who have endured severe trauma, it can be extremely difficult to recount their experiences in a way that is convincing to the CRDD members charged with determining claims. Counsel representing claimants in such cases are forced to seek out expert psychological and medical evidence to establish the claim. In other cases, detailed medical reports are required to corroborate claimants' stories of abuse and torture. While similar expert evidence may be required in other areas covered by legal aid, the additional cost incurred to obtain these reports is a specific legal aid cost attributable to the unique needs of refugee claimants as legal aid clients.

LSS paid $97,703 for medical assessments and attendance of medical witnesses in relation to immigration and refugee matters in 2000-01. This represented 7.3% of all disbursements or 1.9% of fees and disbursements combined. Comparable data from other provinces are not available, but it is reasonable to assume that medical assessments and attendance of medical experts at hearings represent a comparable portion of immigration and refugee legal aid costs in other provinces. On balance it appears that this is considerably less significant as a cost driver than is the requirement for interpretation and translation because the cases where medical reports are required are few in number relative to the overall number of refugee claims for which legal aid is provided.

5.3 Unfamiliarity with Canadian legal processes

Lawyers dealing with immigrants and refugee claimants as legal aid clients have to familiarize their clients with the basic requirements of the Canadian legal system. The majority of refugee claimants come from countries with fundamentally different legal systems, where corruption on the part of public officials is widespread. As a result, many refugee claimants have a deep-seated distrust of the legal system and of people in authority. Even claimants who come from countries such as India, which have legal systems based on the British common law model, are unfamiliar with core elements of the Canadian legal system, such as the Charter of Rights and Freedoms.

When dealing with refugee claimants, lawyers have to spend considerable time explaining the status determination process and getting their clients to focus on the information that is required to establish their refugee claims. Considering the nature of the issues that have to be covered in preparing for refugee hearings, the limited time allowanced for case preparation, are barely adequate even if the clients are thoroughly familiar with the process and know exactly what information to provide to their lawyer [68]. As a consequence, legal aid authorities are under constant pressure to revise their tariffs to more reasonably reflect the actual effort that lawyers are required to devote to immigration and refugee cases. It is not the place of this review to comment on the merits of this particular issue. However, one must be mindful of the unique challenges associated with legal aid work relating to immigration and refugee matters when assessing whether future tariff adjustments may become a significant cost driver for immigration and refugee legal aid. Any increase in tariff rates or time allowances can be expected to have immediate cost consequences for legal aid plans.

5.4 Gender-related claims and cases involving victims of torture

Canada has played a leading role in recognizing that persecution based on gender falls within the "particular social group" ground set forth in Article 1 of the Refugee Convention. Canada's approach to gender-based refugee claims could conceivably be acting as a legal aid cost driver in two ways. First, the relatively expansive interpretation of the Convention refugee definition that is applied in Canada may be acting as a pull factor, drawing to Canada claimants who might otherwise seek asylum elsewhere if the prospect of having their claim accepted were equal. Most European countries have been reluctant to follow the Canadian approach with regard to gender-related persecution, as elaborated in the Chairperson's Guidelines relating to Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guidelines). However, that approach is now more widely accepted than it was when these guidelines were first promulgated in 1993 UNHCR, 2002b). Other destination countries, including Britain, the Netherlands and the United States, are now applying a similar interpretative approach to that set forth in the Gender Guidelines. It is hard to assess whether Canada is receiving more claims than would be the case if the guidelines had not been issued. However, even for the period in the mid-1990s when Canada was alone in pursuing this expansive interpretation of the Refugee Convention, there is no indication that this contributed to any increase in the number of refugee claims made in this country (see section 2.6 above).

Issuance of the Gender Guidelines does not appear to have had any significant impact on composition of the claims being referred to the Board. According to an internal report prepared by the IRB, the number of claims from women did not rise significantly following publication of the Gender Guidelines. Despite the fact that the acceptance rate for female claimants has consistently been slightly higher than for male claimants, the ratio of male to female claimants has remained relatively constant at roughly 60% male and 40% female (IRB, 2002g).

The number of claims identified as gender-related did increase following issuance of the Gender Guidelines; but the total number of these claims was so small as to have no material impact on total claim intake [69]. In 1993, the Board determined 144 gender-related claims. That number increased to 395 in 1994, but by 2000, it had declined to 139 claims, and the number remained below the 1993 level again in 2001 (see Chart 6).

Chart 6 – Gender-related claims: 1993 - 2001

Gender-related claims: 1993 - 2001
[Description of Chart 6]

Source: IRB, 2002g

In 1994, the acceptance rate on gender-related claims was lower than the overall acceptance rate. In every year since then, the acceptance rate for gender-related claims has been higher than the overall acceptance rate. That gap has steadily widened since 1997 while the number of gender-related claims has declined (see Chart 7). Therefore, the Canadian approach on gender-related claims cannot be regarded as a significant pull factor that might be driving legal aid costs.

Chart 7 – Gender-related claims: 1993 -2001

Gender-related claims: 1993 - 2001
[Description of Chart 7]

Source: IRB, 2002g [70]

The second way in which gender issues may be affecting legal aid costs relates to the nature of gender related claims and to the cultural sensitivities of many women from refugee producing countries. Gender-based refugee claims often touch on intimate details of their family life or details regarding incidents of sexual abuse, which claimants, particularly females from traditional, conservative cultures, are reluctant to discuss with strangers. Counsel who deal with cases involving gender-based persecution report that they must often spend extra time preparing these clients for their refugee hearings [71].

Similarly, victims of torture often have great difficulty recounting what they have endured. In such cases, counsel must often spend considerably more time than is required in more straightforward cases, simply to elicit from the client the information required to prepare the claimant's PIF.

This added effort would ordinarily constitute an additional legal aid cost. However, the legal aid tariffs in all Canadian jurisdictions that cover refugee status determination proceedings place a cap on preparation time. The British Columbia and Ontario tariffs, which are the most generous with respect to preparation time, provide a maximum of 15 and 16 hours respectively for case preparation. This may be adequate for routine cases, but legal aid counsel who act in cases that require extra preparation are generally required to do the extra work for free or to rely on others to prepare clients for their hearings [72]. Therefore, the extra effort required in these cases does not, at present, give rise to any additional legal aid costs. However, this could become a cost issue for legal aid authorities should tariffs be amended.

Beyond any additional costs that may be incurred in relation to case preparation, cases involving severely traumatized clients should not, as a general rule, entail significant extra costs for legal aid. Victims of torture and other horrific experiences normally have little problem establishing a well-founded fear of persecution. The main problem in such cases is linking the trauma with one of the five Convention grounds. This may be less of a problem under IRPA since a link to one of the ground listed in the definition of a Convention refugee is not required if the claimant may be subject to torture, or faces a risk to life, or risk of cruel and unusual treatment or punishment.