Maytree Conversations

by Peter Showler, Director, the Refugee Forum

A report on legal aid for refugees (PDF), just released by the Refugee Forum, highlights the challenges facing refugee claimants under Canada’s new refugee regime introduced by Bill C-31. The bill was passed last June and is due to be implemented by the end of the year or early January.

The Refugee Forum report charts the limited legal aid support now available to refugee claimants and underlines the tremendous challenges facing legal aid administrations under the new refugee claim system when the process will be much faster and the need for legal representation greater. Legal aid is provided by the provinces with some federal contribution to legal aid funds.

Here are some of the salient points in the report:

• Only five of the ten provinces now provide legal aid to refugee claimants
• Ontario has the greatest proportion of claims (62%), followed by Quebec and B.C.
• All five legal aid regimes provide limited legal aid funding, screening legal aid applicants for financial eligibility and potential merit of their claim
• There are no obvious ways to do merit screening for claimants under the new system when written claims must be submitted within 15 days.

The report’s section on Ontario provides the best example of the challenges facing refugee claimants. Ontario receives the most claimants (15,120 claims in 2010) and has the most developed legal aid program. Most legal aid service is provided by private lawyers on legal aid certificates working at set tariffs although legal service is also provided by the Refugee Law Office and some community legal clinics.

The report identifies six basic stages in the claim process where refugees will require legal support, which is two more than the current system. It is clear that with smaller budgets, legal aid services will contract while claimant need for service will increase. It is equally clear that Legal Aid Ontario cannot approve certificates quickly enough to realistically meet the rapid timelines to draft the written claim, complete the appeal or prevent the removal of those claimants on a fast track list.

The report also notes that claimants are even more dependent on legal aid support. With the speed of the new system, both the refugee claim and the appeal will be decided before most claimants will be allowed to work to pay for a lawyer.

Ontario has begun to revise its legal aid policies to meet the challenge but its first proposals, introduced on September 6, have not been well received by the refugee bar. Since the deadlines are so short, lawyers are being asked to initiate legal representation without assurance that the claimant will fully qualify for legal aid. Lawyers have objected that they are not only being asked to give their own time for uncertain compensation but must also pay interpretation expenses that may not be reimbursed.

The dilemma for lawyers and legal aid administrations exposes the real costs when a refugee system tries to go too fast. Most experts predict that there will many more unrepresented refugee claimants in the new system and the result will be more judicial errors, more miscarriages of justice, and more legitimate refugees sent home to the risk of persecution.

Download Legal Aid for Refugee Claimants in Canada(PDF) on the Refugee Forum website .

Related:

• Toronto Star: Ontario lawyers stop taking refugee clients on legal aid
• Bill C-31 – Fast but not as fair: Major changes to Canada’s refugee system
• Remembering Rabbi Gunther Plaut
• Press Release: New Canadian Association of Refugee Lawyers launched, vow to defend rights of asylum seekers
• Maytree Opinion – Ratna Omidvar: Recent Immigration Changes Deserve Debate

TORONTO, September 20, 2011 – Over 150 lawyers and academics gathered in Toronto and online via satellite locations throughout Canada on September 9, to launch the Canadian Association of Refugee Lawyers (CARL). Relying on the broad expertise of its members, the new association will serve as an informed national voice on refugee law and human rights, and promote just and consistent practices in the treatment of refugees across Canada.

Lorne Waldman, a prominent Toronto Immigration lawyer and newly elected president of CARL, stated that the new group will act as a strong counter balance to both the recent treatment of asylum seekers, and current policy trends seeking to limit refugee rights in Canada.

“The treatment of detained refugee claimants on the West Coast and arbitrary detention proposed in recent government legislation (Bill C-4) were a call to arms for all those concerned about basic principles of justice,” he said. “More than ever, lawyers and academics across Canada must coordinate their efforts to protect human rights, preserve the Charter, and defend asylum seekers.”

CARL will intervene, organize and disseminate legal research on refugee and asylum issues in a range of ways, including:

• Interventions before the courts on refugee issues of broad national interest;
• Submissions to parliamentary committees on government legislation and policy;
• Public outreach and education on major issues in refugee law and policy;
• Legal support for refugee counsel across Canada; and
• The promotion of a socio-legal scholarship on refugee law and other areas of law impacting on the human rights of migrants.

Mitchell Goldberg, a Montreal immigration lawyer elected vice-president of the association, underlined CARL’s determination to speak out when basic human rights are threatened.

“CARL will not remain silent while the government imposes punitive measures against refugees. This is a slippery slope that violates the rule of law as well as Canada’s humanitarian traditions,” he stated.

Mr. Goldberg added that CARL does not intend to replace other important and respected national organizations, such as the Canadian Council of Refugees and the Canadian Bar Association, but seeks rather to provide a prompt and focused response in the courts and in the public forum.

– 30 –

For more information or to contact CARL:

• Lorne Waldman: President, Toronto,lorne@lornewaldman.ca
• Mitchell Goldberg: Vice-president, Montreal, mitchell.goldberg@gmail.com
• Donald Galloway: Co-chair, Legal Research Committee, Victoria, galloway@uvic.ca
• Peter Showler: Co-chair, Advocacy Committee, Ottawa, pshowler@uottawa.ca

By Peter Showler, Director of the Refugee Forum and former chairperson of the Immigration and Refugee Board (IRB) of Canada

Citizenship, Immigration and Multiculturalism Minister Jason Kenney has just announced that implementation of the Balanced Refugee Reform Act (BRRA), scheduled for December 1 of this year, has been postponed to June 29, 2012. That is the latest possible date under the law that the bill could be implemented.

No reasons have been offered for the delay.

The BRRA radically alters Canada’s refugee claim system and the Immigration and Refugee Board (IRB) was confronted with an enormous administrative task to prepare for the new system. The IRB has been charged with hiring and training hundreds of new staff to serve as Interview Officers and Refugee Protection Division members who will be public servants under the new act. In addition the Board was in the course of creating an entire new division, the Refugee Appeal Division, to hear appeals of refugee decisions.

One potential reason for the delay was the enormousness of the task facing the IRB. The Minister may well have underestimated the time and effort required to draft new rules, procedures, job descriptions and policies as well as to hire and train competent staff. The human resources challenges were immense. There were more than 6,000 applicants for the new refugee decision-maker position alone. The Minister was also confronted with a backlog of 41,000 refugee claims that has not been resolved. Such a backlog would have overwhelmed the new refugee process although it is doubtful that a six-month postponement will resolve the issue. It is not practical to expect the IRB to both implement the new refugee system and resolve the backlog at the same time.

Come next June, Minister Kenney will still have difficult backlog decisions to make if the new system is to be fast, fair and effective as promised.

Related links:

• Refugee Forum
• Fast, Fair and Final: Reforming Canada’s Refugee System
• A fast and fair refugee system: a slogan or a reality?
• New project helps claimants navigate new refugee system

Canada’s new refugee system, to be implemented on December 1, 2011, will require all refugee claimants to attend a disclosure interview before an officer of the Immigration and Refugee Board (IRB) within 15 days of making their claim.

Critiques of the system suggest that refugee claimants will not have time to receive legal advice to prepare for their first interview. “Asking refugee claimants detailed questions about their claim without legal advice or representation is fundamentally a bad idea. Claimants do not understand the refugee definition or refugee procedures,” explains Peter Showler, Director of the Refugee Forum at the University of Ottawa.

The Access to Justice Fund of the Law Foundation of Ontario has given a grant of $350,000 to the University of Ottawa and the Refugee Forum to undertake a project that will help provide refugee claimants with information about a newly created disclosure interview.

The project

Four professors at the University of Ottawa Law School, in conjunction with the Human Rights Research and Education Centre and the Refugee Forum, will:

• draft written information materials on the disclosure interview (that will be evaluated for effectiveness);
• develop workshops for refugee support workers across Canada; and
• develop a website.

Outreach and community engagement will be done through Maytree and other refugee-serving networks, groups, communities and leaders.

Claimants will receive the information about the interview in pamphlet form as well as directly from community refugee support workers who are most likely to engage claimants in that 15-day period before the interview.

The entire project, including contributions from refugee experts and refugee support agencies, is valued at more than a million dollars.

“Although the challenges of the new refugee system are formidable, we are seeing a lot of different agencies and advocates step up to address those challenges,” says Peter. “We are hopeful that the Refugee Assistance project will help to organize and galvanize effective responses to some of the deficiencies in the new refugee system. It is not a complete solution but it is a good start. We are grateful to the Law Foundation for its support.”

Maytree has a long history of working closely with Peter and the Refugee Forum, including direct support towards its establishment, and we’re very pleased to hear of this grant. Most recently, Peter wrote the Maytree report Fast, Fair and Final: Reforming Canada’s Refugee System. He is also a regular and respected commentator on Canada’s immigration and refugee system.

Related links:

• Refugee Forum
• Fast, Fair and Final: Reforming Canada’s Refugee System
• A fast and fair refugee system: a slogan or a reality?

Peter Showler is the Director of the Refugee Forum and the former chairperson of the Immigration and Refugee Board of Canada.

Maytree’s yearly Policy Insights document presents policy proposals prepared by Maytree, its partners and grantees. These recommendations make up the three important “I”s of public policy: ideas, instruments, and investments. They each identify a powerful idea to improve the life of Canadians, the instruments which will be effective in creating that improvement, and the investments that must be made to operationalize the instruments. These recommendations build on the power and potential of public services, and the resiliency of Canadians. You can download the complete collection of Policy Insights in PDF format. Please share and distribute to your networks.

Canada has both a moral and legal obligation to ensure that those who arrive at its borders will not be sent back to their country of origin if they are threatened with persecution or torture. Like all countries who signed the 1951 United Nations Convention relating to the Status of Refugees, Canada has considerable latitude in designing the process by which it decides who is or is not a refugee.

Although Canada’s current refugee system enjoys wide international respect, it has serious defects, notably the lack of an appeal, a questionable method of appointing decision-makers and an excessive number of administrative stages leading to delays in decision-making and the removal of refused claims. At the start of 2010, there was a backlog of 62,000 undecided refugee claims and a four-to-six-year delay in removing failed claimants.

In June 2010, the Balanced Refugee Reform Act was passed with the support of all political parties after the government accepted several key amendments to the initial government bill. The act will substantially reform Canada’s refugee claim process and is expected to be implemented in December 2011. Most experts and academics feel that the new system, if properly implemented, will be an improvement over the current system. The significant changes to the system include:

• Shorter timelines for the first level decision;
• Expedited timelines for claimants from a safe country of origin;
• Members of the Refugee Protection Division will now be public servants;
• A right of appeal to a new Refugee Appeal Division;
• Prompt removal of failed claimants within one year; and
• Limited access to alternative humanitarian applications.

Since the bill is framework legislation, many of the essential details that will determine the success and fairness of the new claim process will be contained in the government regulations and the Immigration and Refugee Board (IRB) rules. Initial drafts of the regulations and IRB rules indicate that the government may impose unreasonable time standards, particularly for the appeal process, that will seriously restrict the role of legal representatives and may lead to serious miscarriages of justice.

The Refugee Forum and other agencies will continue to encourage the government to introduce more reasonable regulations that will reflect the spirit of balance contained in the act itself. Depriving refugees of reasonable opportunities to retain legal counsel and to fully present their claims undermines both the fairness and the effectiveness of the claim system itself.

Allocate 45 days for an appeal to the new Refugee Appeal Division

The reformed refugee claim process has balanced a faster first level decision with a new appeal to catch errors. Preliminary comments from the government have indicated that refused refugee claimants will be allowed only 15 days to file and complete their appeals to the Refugee Appeal Division. That is an absurdly inadequate period of time to retain a lawyer who must review the evidence and hearing transcript to file a meaningful appeal. One of the reasons that refugee claimants are refused is due to poor legal representation. Refused claimants would be deprived of any possibility of finding alternative legal counsel for their appeal.

The current time limits of 45 days used by the Federal Court have proven to be a reasonable minimum standard and should be adopted in the new government regulations.

Further reading:

• Refugee Forum
• A fast and fair refugee system: a slogan or a reality?
• Report – Fast, Fair and Final: Reforming Canada’s Refugee System
• Webinar recording – Fast Fair and Final: Reforming Canada’s Refugee System

On March 30, 2010, the government tabled legislation in the House of Commons to reform Canada’s Inland Refugee Protection System, Bill C-11. The Bill sets out to make the refugee claim process faster and fairer. In the Ottawa Citizen op-ed “Toward fast and fair,” Peter Showler, Director of the Refugee Forum at the University of Ottawa, argues that the reforms announced Tuesday represent a good start to rebuilding Canada’s refugee system.

Here is Peter Showler’s op-ed:

All of the major asylum systems of the world aspire to be both fast and fair, but none of them are.

Canada’s asylum system has been renowned as the fairest, but has suffered more than its share of criticism. It was often praised internationally while being criticized at home from both the left and the right.

The current government was particularly critical last summer, blaming the refugee system for the necessity of imposing visa restrictions on Mexico and the Czech Republic. At that time, the government promised refugee reform, and now it has delivered a package of reforms that could strike an effective balance between fast and fair.

Making refugee decisions has never been an easy task.

Most of the evidence and witnesses for a refugee claim remain inaccessible in the refugee’s home country. The sole witness is the refugee, and he or she is a notoriously poor one. Refugees must normally testify through an interpreter, they are frightened and haunted by their own persecution, they can’t remember key events or can’t find the words to describe them credibly. They don’t understand legal procedure. Some of them have been told to lie by smugglers or relatives. The quality of their legal representative varies from heroic to incompetent and unethical, and refugees can’t tell the difference.

It is not easy for Immigration and Refugee Board members to distinguish between the frightened, the confused and the false witness and, collectively, they must do it 35,000 times per year. It is heart-rending, complicated justice that operates on a high-volume basis, like trying to serve excellent cuisine out of a fast-food outlet.

At the same time, some of the principal criticisms of Canada’s system have merit. The system is too slow, under-resourced and over-burdened. The appointment of board members has been inefficient, secretive and sometimes political. There is no reliable appeal, there are too many stages to the removal process, they take too long and result in little tangible difference in the outcome.

The system has been foundering. There is a backlog of 61,000 claims at the IRB. The wait time is currently 18 months and it will get longer. The average time in Canada for failed claims is 4.5 years and many take far longer. Academic studies demonstrate unacceptably wide variances between the asylum granting rates of individual IRB members, as well as between Federal Court judges. That smacks of arbitrary justice. Government officials talk of “five levels of appeal” while there is not one decent, reliable appeal as it is understood by lawyers and jurists.

In the government’s proposal, all eligible claimants will still receive a full hearing before an independent IRB member, who will now be a public servant, but one who works within the penumbra of the board’s independence. The government has resourced the position to produce a continuing corps of professional decision-makers that will not be subject to the uncertainties of political re-appointment.

There will be a true appeal to a new Refugee Appeal Division (RAD) of the IRB. The appeal procedure will be better than the stillborn appeal system in the current legislation that never saw the light of day. This new appeal could be an effective catcher and correcter of first-level mistakes.

The government has dismantled and accelerated the removals process. Claimants who come from designated safe countries will not be allowed to appeal their first-level decision. Alternative humanitarian applications to remain in the country will not be allowed after a claim is refused. There will be no pre-removal risk assessment if the claimant is removed within one year.

These are tough provisions, but are not unfair if the first-level decision and the appeal are well done.

There is one serious flaw that must be corrected. Under the current proposal, a refugee claimant would be referred to the IRB for an interview within eight days of making a claim and would then receive a hearing within 60 days of the interview. That is an unrealistic time frame that leaves insufficient time for effective legal representation.

Poor legal representation has been one of the quiet scandals of the current refugee system. This proposal makes it worse. Some see lawyers as a complication to the system, an inconvenience that gums up the works. The truth is that good lawyers facilitate good decisions and poor lawyers confuse and delay the process. A tough solution is at hand: eliminate the consultants, fund legal aid adequately and allow four months to hear the claim.

The government has struck a reasonable balance between fast and fair, but dangers abound. If the minister places unsafe countries on the safe country list, the system disintegrates. If the public servant decision makers import departmental biases into their role as independent decision makers, they will render incorrect decisions and the system will founder. If the cabinet reverts to patronage in appointing RAD members, the reliability of the RAD is lost and the integrity of a fast removals process is lost.

At the end of the day it is the integrity of the refugee claim decisions that drive the system. If the IRB gets it right both at the first level and on appeal, then the government will be able to promptly remove failed claimants.

The real secret of an effective system is that fast and fair are not opposites, they are complementary. The government appears to understand this principle. Apart from granting more time before the first hearing, this proposed system will work as long as it is fairly and reasonably implemented.

It is devilishly difficult to make a refugee decision, to figure out whether one particular individual does or does not have a well-founded fear of persecution in his or her home country. It is even more difficult to design an entire refugee claim system that is both fast and fair. The Conservative government has done just that, striking a reasonable balance between the two. But now the devil is in the details.

Former IRB chairman Peter Showler is director of the Refuge Forum at the University of Ottawa Law School and author of Fast, Fair and Final: Recommendations for Refugee Reform.

(Originally published by Peter Showler in the Ottawa Citizen as “Toward fast and fair“).