Immigration and Refugee Legal Aid Cost Drivers

7. Impact of legislative and jurisprudential developments (cont'd)

7. Impact of legislative and jurisprudential developments (cont'd)

7.2 Appeal to new Refugee Appeal Division as of right

Under the new Immigration and Refugee Protection Act, the CRDD has been replaced by the newly named Refugee Protection Division (RPD). IRPA also establishes a new Refugee Appeal Division (RAD), which is mandated to decide appeals relating to RPD status determination decisions. However, implementation of the provisions relating to the RAD has been delayed. The following discussion on implications of creation of the RAD is highly speculative and is intended primarily to give the reader a sense of what might happen to legal aid costs when the RAD is eventually implemented.

Both individual claimants and the Minister have the right to appeal any RPD decision to the RAD (s.110(1)). This new appeal will be conducted based on a paper review of the record from the RPD proceedings, together with written submissions from the Minister and the person who is the subject of the appeal (s.110(3)). The RAD may also consider written submissions from the representative of the United Nations High Commissioner for Refugees and from other interveners when interventions are allowed by the RAD. [103] There will be no oral hearings. Appellants will be expected to establish an arguable case as to why the RPD decision is flawed. If such an arguable case is not evident from the appellant's written submission, the RAD may summarily dismiss the appeal. Where such a case is presented, out, the RAD will look more deeply into the matter. The RAD jurisdiction is to confirm the RPD decision [s.111(1)(a)] or to set it aside and make the decision that, in the opinion of the RAD, should have been made [s.111(1)(b)]. The new Act also gives the RAD authority to remit cases to the RPD to be re-heard [s.111(1)(c)], and where RAD has allowed an appeal by the Minister that was based on a question of the claimant's credibility, s.111(2) of the new Act directs the RAD to remit the case to the RPD for a new hearing.

The key differences between this new right of appeal and the present judicial review process in the Federal Court are:

  1. decisions can be appealed as of right; there is no requirement for an appellant to obtain leave, whereas judicial review of CRDD decisions was only available on leave of a judge of the Trial Division of the Federal Court;
  2. appeals to the RAD can be based on a question of fact or mixed fact and law, whereas judicial review is essentially limited to alleged errors of law; [104]
  3. the RAD will have authority to substitute its own decision for that made by the RPD, whereas the Federal Court on judicial review, when it finds a decision to be defective, can only remit the case to be re-heard by the RPD; and
  4. decisions of the RAD will be subject to judicial review in the Federal Court on leave of a judge of that court, whereas there is no further review of a judicial review decision made by a judge of the Trial Division of the Federal Court unless that judge certifies that the case raises serious question of general importance and states that question.

This new appeal process has significant potential cost implications for legal aid.

Within 45 days after receiving notice of the RPD decisions, appellants will be required to submit a written memorandum that sets out the facts and the law they are relying upon in the appeal. They must also provide all or part of the transcript of the RPD hearing if they choose to rely upon the transcript in the appeal. And they must provide any documents that the RPD refused to take into evidence if this is relevant to the appeal [RAD Rules, s.11(1)]. For an appeal to have any realistic prospect of success, this means, as a practical matter, that appellants are going to require legal assistance to prepare appeal submissions. Without expert, experienced legal assistance, appellants who are not proficient in either of Canada's official languages, and who are completely unfamiliar with the technical legal requirements of the refugee determination process, will likely not be able to prepare a submission within the tight timeframe envisaged. This could lead to a significant increase in demand for legal aid.

The information required for an appeal is similar to that required for a judicial review leave application. Under the current system applications for leave for judicial review that fail to disclose a fairly arguable case for the relief sought are liable to be summarily dismissed (Bains v. Canada (Minister of Employment and Immigration)). Likewise, the RAD can be expected to summarily dismiss appeals where submissions fail to identify an arguable factual or legal error in the challenged decision. There is a key difference, however. Whereas denial of leave by the Federal Court effectively amounts to a final decision in the matter, an appellant will be able to seek leave from the Federal Court for judicial review of the RAD decision.

From a legal aid perspective, one can presume that the level of work required to prepare an appeal to the RAD will be similar to what is currently required to prepare an application for leave for judicial review. Submissions on appeals to the RAD may have to be more fully developed than is currently required for leave applications, but it is not anticipated that this will require significant additional work in the majority of cases [105]. For purposes of the analysis that follows, it is assumed that for applications to the RAD, counsel representing appellants would require approximately 20 hours to prepare submissions. This is roughly equal to the time allowed for preparation of leave applications under the Ontario and British Columbia legal aid tariffs [106]. Thus, total fees per case charged to legal aid for appeals to the RAD should be comparable to fees currently charged for judicial review leave applications.

Since the RAD process will be entirely based on written submissions, there is no need for counsel to appear before the tribunal to argue the case. However, if appellants choose to rely on the transcript of the RPD hearing, they will have to bear the cost of preparing the transcript for an audio recording that will be provided by the RPD unless the RAD orders otherwise (RAD Rules, s.12). This represents a limited departure from current practice. At present, the IRB bears the cost of producing transcripts in all cases where leave for judicial review is granted. Applicants for judicial review have to pay for transcripts of the CRDD hearing only where the transcript is required for purposes of preparing the leave application. The plan with respect to use of hearing transcripts at the RAD is that the RPD will, on request, provide claimants and /or their counsel with audio recordings of RPD hearings. Persons preparing appeal applications will have the option of producing, at their own expense, a full transcript of the hearing or of transcribing portions of the recording that are directly relevant to the appeal.

Assuming that the number of appeals to the RAD would be roughly equal to the number of applications for leave for judicial review, one can anticipate that total legal aid cost for appeals to the RAD will be roughly equal to the current cost for judicial review leave applications. If transcripts are required in a substantial number of cases and legal aid plans cover this item, this could represent a new legal aid cost. For purposes of the analysis that follows, it is assumed that transcripts costing $200 each will be required in 10% of appeals to the RAD.

The full legal aid cost implications associated with the introduction of an appeal to the RAD are difficult to calculate. There should be some reduction in the number of cases where leave for judicial review is granted and in the number of cases that are referred back to the RPD for re-determination. It is reasonable to assume that the RAD could correct obviously erroneous RPD decisions and that in most of these cases, the RAD could make a final decision on the case without remitting the matter back to the RPD for re-determination. Thus, intervention of the RAD could eliminate the need for judicial review and for a new RPD hearing in these cases. End-to-end legal aid costs related to cases of this sort should therefore decline. A cursory review of reasons given by Federal Court judges on judicial review of CRDD decisions indicates that approximately one-third of the decisions quashed fall into this category.

If current experience in the Federal Court is any guide, the RAD will reject a substantial number of claimants' appeals. Also, on Minister's appeals, the RAD may overturn RPD status determinations made in favour of individual asylum seekers. In both of these instances, a fair number of the parties against whom RAD decisions are made will likely seek leave for judicial review of the RAD decisions since it is the only remaining available recourse. It is difficult to predict how many leave applications there would be; however, if the number is high, this could be a major additional cost for legal aid [107].

Assuming that the RAD is staffed by highly qualified decision makers, as originally intended, it is anticipated that Federal Court judges will accord greater deference to RAD decisions than they have, in the past, been prepared to accord to CRDD decisions. If this turns out to be the case, there should be a further reduction in the number of cases for which leave for judicial review is granted [108]. However, if for any reason, the RAD fails to gain increased deference, the number of cases in which leave for judicial review is granted could remain a significant legal aid cost driver.

Following is a summary projection of the potential cost savings and / or increases that may be occasioned under different scenarios as a result of the establishment of the RAD. These projections are somewhat speculative, but they do provide a starting point for a discussion of the potential impacts that introduction of the RAD could have on the demand for legal aid. In all cases, calculations are based on the number of cases in which leave for judicial review was granted in 2000-01 (see Table 6, above). It is assumed that the percentage of RPD decisions appealed to the RAD will be equivalent to the percentage for which leave for judicial review is currently being sought. [109] The actual number of decisions that will be appealed to the RAD when it is eventually implemented may be substantially higher than the numbers shown in the calculations that follow[110]. But change in case volume is an independent cost driver that needs to be accounted for separately.

Table 8 presents a summary of anticipated legal aid costs associated with the addition of the new appeal as of right. These calculations are based on three different scenarios respecting the number of leave applications that would be made for judicial review of RAD decisions and respecting the level of judicial deference to RAD decisions. For scenario 1, it is assumed that RAD would resolve all of the cases that are currently being overturned on judicial review plus one-third of the cases for which leave for judicial review is currently being granted. As well it is assumed that increased judicial deference will result in a 50% reduction in the rate at which leave for judicial review is currently being granted.

For scenario 2, it is assumed that the RAD would resolve 75% of the cases that are currently being overturned on judicial review plus one-third of the cases for which leave for judicial review is currently being granted, and that increased judicial deference will result in a 25% reduction in the rate at which leave for judicial review is currently being granted.

For scenario 3, it is assumed that the RAD would resolve 50% of the cases that are currently being overturned on judicial review plus one-third of the cases for which leave for judicial review is currently being granted. It is further assumed that the rate at which leave for judicial review is currently being granted would remain unchanged.

Table 8
Projected National Legal Aid Costs Associated with New Appeal
  Pre-RAD Scenario 1 Scenario 2 Scenario 3
Negative status determinations        
Appealed to RAD   6.016.600$ 6.016.600$ 6.016.600$
Leave applications to FC 6.016.600$ 1.665.258$ 2.280.380$ 2.891.888$
Leave granted by FC 522.466$ 72.305$ 148.517$ 198.022$
Quashed by FC 36.984$ 5.118$ 10.513$ 14.017$
Transcripts   89.800$ 89.800$ 89.800$
Total cost 6.576.050$ 7.759.308$ 8.456.010$ 9.120.527$

The figures in Table 8 suggest that legal aid costs associated with appeals to the RAD and subsequent judicial review applications could be 18% to 39% higher than current costs associated with applications for judicial review without any prior appeal. The only way in which net total cost of the combined processes could be less than the current cost for the two-stage judicial review process is if there is a drastic decline in applications for leave for judicial review as a result of the introduction of the right of appeal to the RAD. If the frequency at which leave is sought with respect to RAD decisions declined to the range of 10% to 15% from the current level of 63%, the net total legal aid cost could conceivably be lower than at present. But that is such a remote possibility that it can safely be ignored.

These calculations are provided simply to illustrate the point that the introduction of the new right of appeal is likely to result in higher legal aid costs. The figures cannot be taken as indicative of actual anticipated increased cost since the assumptions on which they are based do not apply in all jurisdictions. Any difference in hourly rates, time allowed for work on appeals, discretionary or merit screening policies, and any differences in percentage of decisions that are the subject of appeal and judicial review leave applications, would have a direct impact on bottom-line costs.