Designated Representatives at the Immigration and Refugee Board – Update

28 Mar

Designated Representatives are appointed by the Immigration and Refugee Board (IRB) of Canada, to assist those who are under 18 years of age or who do not appreciate the nature of the proceeding.  See: http://www.irb-cisr.gc.ca/Eng/brdcom/references/legjur/idsi/guide/Pages/idguide07.aspx#72

As the IRB reviews it’s processes, it has formed a working group to deal with the role of designated representatives in the hearing process.  Below is a listing of the Final Responses from the IRB to concerns raised by stakeholders.

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Final Responses from the Immigration and Refugee Board of Canada’s (IRB)

Working Group on Designated Representatives (DRs) to Concerns Raised by Stakeholders

1. Role and responsibilities of DRs

Concerns/comments

* DRs, counsel (for the Minister, the claimant/appellant/person concerned), and IRB members do not always understand the D’s role and responsibilities.

* There is confusion regarding the role of the DR, as to whether it is a support for the individual or a substitute decision-maker.

* The distinction between the role of the DR and counsel should be clarified.

* Throughout the process, ensure that the DR understands and fulfills their role and responsibilities adequately and meets the claimant before the hearing.

* Ensure that parents appointed as DRs act in the children’s best interests.

WG’s response

Target: DRs

1.1 Clear and specific instructions to DRs (e.g. short guide), according to the Rules and Commentaries to the Rules of Divisions, clarifying role and responsibilities of DRs. Also include clarifications regarding role of DR as a person who may take the place of the claimant/appellant/person concerned in making decisions about the case and DRs acting as counsel; and expectation that DR meets the claimant/appellant/person concerned in person early in the process. Copy to be provided to DRs upon their designation and to counsel involved in the case.

1.2 National training program for external DRs (i.e. excluding parents) to be developed in consultation with stakeholders and non-governmental organizations (NGOs), to ensure consistency in all regions, to the extent possible.

Target: Registry

1.3 Relevant instructions to be revised and related forms to be amended/developed.

1.3.1 DRs to confirm in writing that they accept fulfilling the role and responsibilities of DR, rather than the Division assuming that they accept, in the absence of a formal refusal within specified timeframes. (Under new legislation, in the Refugee Protection Division (RPD), the DR’s role and responsibilities will be explained to the proposed DR by the interviewing officer at the initial interview and the DR will confirm in writing that they accept.)

1.3.2 Ensure that there is an expectation that the DR meets the claimant/appellant/person concerned in person early in the process. (Will also be added in instructions to DRs set out in 1.1 above.)

1.4 Training of registry staff with respect to these revised instructions.

Target: Members and tribunal officers

1.5 Training of members and tribunal officers regarding role and responsibilities of DRs.

Target: Rules

1.6 Clarify and add as much information as possible on the appointment, definition and role of DRs in Rules (for each Division).

2. Timing of and consistency in appointment of DRs

Concerns/comments

* There is regional variance in terms of the appointment of DRs.

* The timing of the appointment is problematic, as it occurs too late in the process.

* The same DR should be appointed to represent an individual through all proceedings before the Board.

* When non-DR parent signs the Personal Information Form (PIF), confirm with the parents which one intends to act as the DR to eliminate any doubt about who is acting for the minors (assuming that the parent-DR has been appointed before the PIF is received by IRB).

* Ensure that a non-parent DR is appointed in case of a potential custodial issue.

WG’s response

Target: DRs Resources

2.1 As the variance is partly explainable by the resources available at the regional level to fill the position of DRs, look into possibly obtaining the services of former members or tribunal officers for the regions in which this is a problem.

2.2 Set up a list of persons capable and willing to act as DRs that would be shared by the Divisions, in consultation with stakeholders and NGOs (including ARCH and SSO) as to names of potential DRs. This list would also include social workers and other mental health professionals.

Target: Registry

2.3 Relevant instructions to be revised and related forms to be amended/developed.

2.3.1 The same DR is to be suggested to member to represent individual throughout all proceedings in any Division before the IRB where possible, as the decision rests with the member. (Under new legislation, this is in the draft RAD rules.)

2.3.2 Review best time after referral to hold conference, where necessary, to appoint DR for unaccompanied minor. The purpose of the conference is to determine whether the minor has adult/family support in Canada and to appoint the proposed DR identified. (Under new legislation, this would be accomplished in the RPD at the interview or around that time.)

2.3.3 When non-DR parent has signed the PIF, registry to verify that the previously appointed parent-DR is willing to continue as DR; if not, suggest that the other parent be appointed; if willing to continue in the role of DR, registry to confirm the designation (this additional step would be the record that IRB noticed that non-DR parent signed the PIF for the minor; that IRB exercised due diligence by checking to see if this meant that the appointed DR parent was unwilling to continue in the role of DR; and that IRB received affirmation that the appointed DR did intend to continue in that role). (Under new legislation, this will be verified and addressed at the initial interview.)

2.3.4 Revise/develop instructions for all Divisions regarding the need to appoint a non‑parent DR in case of a potential custodial issue.

2.4 Training of registry staff with respect to these revised instructions.

Target: Members and tribunal officers

2.5 Training material for members to be revised:

2.5.1 Ensure consistent practice from a region to another, to the extent possible. Instructions and explanations will be the same and the point in the process where designation occurs will be consistent for similar situations.

2.5.2 Ensure that the member confirms at the hearing the date the DR was appointed, that the DR has undertaken to fulfill their role and responsibilities, as confirmed in writing in proposed new acceptance form completed by the DR.

2.5.3 Ensure that the member assesses the need to appoint a non-parent DR in case of a potential custodial issue.

2.6 Training of members and tribunal officers.

3.

Qualifications of DRs

Concerns/comments

* There are inconsistencies in the DRs’ required qualifications.

* The requirements in the rules setting out the qualifications for a person to be a DR are too minimal and unaccompanied minors in particular may not always be provided with qualified DRs. The Quebec’s system (PRAIDA) works well as it relies on professional social workers who develop an expertise that enables them to participate effectively. This commendable program could serve as a model for other provinces. In all cases, DRs should be provided sufficient government support and training to fulfill their role.

* Allocation of sufficient resources to support DRs with the qualifications necessary to attain the goals implied by legislation.

* Ensure that appointment of proposed DRs who purport to be family members of minors is not made “automatically” by members and that the proposed DR is willing and able to fulfill the role and responsibilities of DR and to act in the best interests of the (minor) claimant.

WG’s response

Target: DRs Resources

3.1 Same as 2.1 above. As the variance is partly explainable by the resources available at the regional level to fill the position of DRs, look into possibly obtaining the services of former members or tribunal officers for the regions in which this is a problem.

3.2 Same as 2.2 above. Set up a list of persons capable and willing to act as DRs that would be shared by the Divisions, in consultation with stakeholders and NGOs (including ARCH and SSO) as to names of potential DRs. This list would also include social workers and other mental health professionals. The IRB acknowledges that the Quebec’s system PRAIDA, a provincial government program, which relies on professional social workers, has proved to be successful in dealing with unaccompanied minors and persons who cannot appreciate the nature of the proceedings.

Target: DRs

3.3   Same as 1.2 above. National training program for external DRs (i.e. excluding parents), to be developed in consultation with the stakeholders and NGOs, to ensure consistency in all regions, to the extent possible.

3.4   Establish a working group to examine the fees paid to DRs to attract more potential DRs.

Target: Members and tribunal officers

3.5   Training material for members to be revised to ensure members pay particular attention and question proposed DRs to explore the strength and nature of the relationship with minors, before appointing them.

3.6   Training of members and tribunal officers.

4.    Other

Concerns/comments

* The United Nations Convention on the Rights of Persons with Disabilities, which was ratified by Canada on March 11, 2010, should be considered in all cases when appropriate by the IRB.

* Create and enforce more substantive and procedural guidelines for IRB members with respect to persons with mental illness.

* Provide in-depth training on mental health to IRB members and develop comprehensive training guides.

WG’s response

Target: Members and tribunal officers

4.1 Training material for members:

4.1.1 Ensure that the United Nations Convention on the Rights of Persons with Disabilities is considered in all cases when appropriate.

4.1.2 National training or awareness program dedicated on mental health issues, to be developed by IRB in consultation with NGOs and experts in mental health field (including ARCH and SSO).

4.1.3 Application of Guideline 8, in particular sections 7.4 and 8.6:

> formal requirements related to making applications may be waived or modified (section 7.4); and

> requirement for an expert report to prove vulnerability is not absolute, as the person may present a report from an NGO or another professional body, explaining the reasons why the person should be identified as vulnerable and provided accommodations (section 8.6).

4.2 Training of members and tribunal officers.

2

Policy and Procedures Directorate – Operations Branch

March 17, 2011

Changes to English or French Language Testing for Immigration

10 Mar

Citizenship and Immigration Canada has just announced that English or French language test scores, to prove proficiency, will now be required at the beginning of the application process. The immigration regulations/policies to immigrate to Canada, have permitted applicants to provide alternate proof of language ability. This option to provide alternate proof was generally aimed at those applicants who either came from countries where English or French were prevalent (main) languages or where the applicant had taken most of their education in English or French. All others were usually required to show proof of language ability via a test score from one of the recognized testing agencies such as IELTS. 

With this change in process, it is now even more imperative that proof of language ability is provided at the beginning of the process for those wishing to immigrate to Canada as Federal Skilled Workers (FSW) or under the Canada Experience Class (CEC). The full memorandum is provided below.

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Good afternoon,

 

I am writing to inform you of an administrative change in the treatment of documents submitted as proof of language proficiency under the Federal Skilled Worker (FSW) category and Canadian Experience Class (CEC).  Citizenship and Immigration Canada (CIC) understands that this change may affect the advice immigration representatives provide to their clients.  With this in mind, we would ask that you kindly inform your members of the following administrative change.

 

Effective April 10, 2010, visa officers will only consider the evidence of language proficiency provided at the time of application.  Currently, if a written submission does not satisfy the visa officer that the applicant has demonstrated the level of language proficiency claimed, the applicant is offered the opportunity to undergo and submit the results of a designated language test.  Under the new directive, visa officers will no longer offer the applicant a “second chance” to prove their language proficiency when the written evidence does not support their claim.  This will apply to all FSW and CEC applications received on or after the effective date.

 

This change is another improvement which supports the Action Plan for Faster Immigration.  A survey of missions abroad revealed that a substantial proportion of applicants worldwide are providing written submissions as evidence of language proficiency, and a sizeable majority of these submissions do not support the level claimed.  Offering these applicants a “second chance” not only lengthens the processing of their applications, but also adds to the overall processing burden for all FSW applications.  Consequently, removing this extra step in the process will improve processing times.

 

I would also like to take this opportunity to remind you that the option of providing a written submission as proof of language proficiency is only recommended for those for whom English or French is a first language, as they are able to easily demonstrate a high level of proficiency.  Application kits provide guidance on the types of information that should be included.  For others, providing the results of a language test by a designated language testing agency ensures a higher degree of reliability and transparency.  FSW applicants will know from the outset how many language points will be awarded on the selection grid, and CEC applicants will know whether they meet the minimum language requirement.  Therefore, it is strongly recommended that these applicants have language test results before application.

 

Thank you in advance for your cooperation on this matter.

 

 

 

Monsieur / Madame,

 

Je vous écris pour vous informer d’un changement administratif dans le traitement des documents présentés à titre de preuve des compétences linguistiques dans les catégories des travailleurs qualifiés (fédéral) (TQF) et de l’expérience canadienne (CEC). Citoyenneté et Immigration Canada (CIC) comprend que ce changement risque d’avoir une incidence sur les avis fournis par les représentants en immigration à leurs clients.  C’est pourquoi nous vous demandons d’avoir l’obligeance d’informer vos membres du changement administratif suivant.

 

À compter du 10 avril 2010, les agents des visas ne prendront en considération que les preuves de compétence linguistique fournies au moment de la présentation de la demande. À l’heure actuelle, si l’explication écrite et les documents à l’appui (la soumission) ne convainquent pas l’agent des visas que le demandeur possède le niveau de compétence linguistique déclaré, on donne la possibilité à ce dernier de passer un test d’évaluation linguistique administré par un organisme désigné et de présenter les résultats obtenus à ce test. Aux termes de la nouvelle directive, les agents des visas ne donneront plus aux demandeurs de « seconde chance » de prouver leurs compétences linguistiques si la soumission n’est pas convaincante. Cette directive s’applique à toutes les demandes dans les catégories TQF et CEC qui seront reçues à partir de la date de prise d’effet.

 

Ce changement est une autre amélioration à l’appui du Plan d’action pour accélérer l’immigration. Une enquête réalisée dans les missions à l’étranger a révélé qu’une proportion importante des demandeurs présentent des soumissions comme preuve de leurs compétences linguistiques, et qu’une bonne majorité de ces explications écrites ne sont pas révélatrices du niveau de compétence allégué. Offrir à ces demandeurs une « seconde chance » ne fait qu’allonger le processus de traitement de leur demande, et contribue également à alourdir le fardeau du traitement de toutes les demandes dans la catégorie des TQF. Par conséquent, l’élimination de cette étape supplémentaire du processus entraînera une amélioration des délais de traitement.

 

Je profite de l’occasion pour vous rappeler qu’offrir la possibilité de présenter une soumission à titre de preuve des compétences linguistiques n’est recommandé qu’aux personnes dont l’anglais ou le français est leur première langue, étant donné qu’elles peuvent facilement démontrer un niveau de compétence élevé. Les trousses de demande fournissent des instructions sur le genre de renseignements à fournir. Pour les personnes qui n’ont ni le français ni l’anglais comme première langue, fournir les résultats d’un test d’évaluation linguistique administré par un organisme désigné garantit un degré plus élevé de fiabilité et de transparence. Ainsi, les demandeurs dans la catégorie des TQF sauront dès le départ combien de points liés aux compétences linguistiques leur seront attribués sur la grille de sélection, et les demandeurs dans la catégorie CEC sauront s’ils respectent les exigences minimales sur le plan des compétences linguistiques.  Ainsi, il est fortement recommandé que ces demandeurs aient reçu les résultats de leur test de langue avant de présenter une demande.

 

Nous vous remercions à l’avance de votre collaboration.

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END

The (slow) death of the Entrepreneur Class immigrant to Canada

26 Oct

In my Canadian Immigration law practice over the past (almost two decades), I have since the Entrepreneur class of business immigrants to Canada slowly die out.  

The statistics tell the story.

Principal Applicants under the Entrereneur class category have declined steadily from 1,668 in 1998, to 447 in 2008. At the same time, the Investor class of business immigrant to Canada has risen from 1,138 in 1998 to 2,831 in 2008. A similar rise has taken place in immigrants applying to provincial nominee programs for business immigration to specific provinces fro, 151 Principal applicants in 1999 to 8,343 in 2008 (these would be a combination of those selected in PNP occupations programs and PNP business programs).

So what do these numbers tell us.

First, the Investor class is attractive to business immigrants to Canada because it is one of the “fast tracked” programs at visa processing sections at our Embassies/Consulates/ Processing Centre’s outside Canada. There is a rough quota of 2,000 such cases to be approved each year and given the large dollar amounts involved, Program Managers feel the pressure to get the Immigrant Class investor applicant approved as soon as possible. These individuals each have a net worth in excess of $800,000 CDN and are investing $400,000 with an approved Canadian investor fund for a 5 year period. Many Investory class applicants (some rumors say up to 95%, choose to simply pay the $120,000CDN payment and forfeit any refund).

Second, that the Provinicial Nominee Programs also offer a faster processing time for business immigration to Canada. While each province has its own specific emphasis on the type of business immigrant it seeks, they all seem focussed on expediting the application and in providing before and after counselling on how to best succeed in business in their respective province.

Third, the Entrepreneur class, by virtue of it being in a slow processing stream, having very little pre and post immgration support for the new entreprenuer business immigrants, and a very long time frame to remove the terms and conditions imposed upon landing, has become the “option of last resort” for many who seek to Canada with entrepreneur skills and substantial net worth.

Instead of clearly stating that the Entrepreneur class of immigration is in its death throes, it appears that Citizenship and Immigration Canada, is letting the program die a quite death.

It is unfortunate that the Entrepreneur class seems on its way out (though no formal announcements have been made to this effect). In my practice I saw several examples of entrepreneurs from other countries immigrating to Canada and making a major success of themselves and creating Canadian jobs in the process.

Canadian Refugee Law 101 – Essential Resources

19 Oct

The recent interest in Canadian refugee law, sparked by the arrival of a boat full of Sri Lankan migrants off the west coast of Canada, has led to a renewed debate about whether Canada is too “lax” about refugees.

An important element missing from the debate is a basic understanding of  how the refugee process works in Canadian law. Below is a basic list of resources (web sites) to learn more about this topic.

1.0 The basic legal framework for Canadian refugee law is contained in the Immigration and Refugee Protection Act.

2.0 Canada’s international obligations to protect refugees arise from the 1951 Refugee Convention and its 1967 Protocol, which Canada became a party to on June 4, 1969.

3.0 A great resource to understanding how Canada’s refugee process works is the Immigration and Refugee Board of Canada website.

4.0 The Canadian Council for Refugees website advocates on behalf of refugees in Canada and does an excellent job of highlighting the key issues which refugees face.

5.0 Canadian refugee law does not operate within a vacuum but is influenced by and influences the body of international refugee law. There are numerous sites which place Canadian refugee law within an international context. Some sites of note are a Guide to International Refugee Law Resources on the web by Elisa Mason. Ms. Mason has also prepared other resource guides on the topic of refugee law which are detailed and useful.

6.0 The website of the United Nations High Commissioner for Refugees (UNHCR) is, of course, an essential website for anyone trying to understand the complex laws and processes which govern the rights of refugees.

The above list is only a beginning but should provide a basic overview.

No Simple Answers – Migrant Boat in BC Waters

18 Oct

Today I was asked by a reporter if Sri Lanka was off the coast of Africa. “Pardon my ignorance,” he said. He was writing a story about a  boat with 76 migrants from Sri Lanka which appeared off the coast of British Columbia on Saturday October 17. “No”, I explained, “Sri Lanka is just below India”.

Another reporter asked me if the migrants would be held in jail. “Yes”, I said. “You mean like criminals?”, the reporter asked. “Yes”, I replied, “with criminals and those charged with crimes in pre-trial detention centres”.

Yet another asked, “can you explain briefly how the process works?”. When I began to explain the interaction between the RCMP and the Canada Border Services Agency (CBSA), how Canada was a signatory to several international conventions and protocols to assist refugees, how the process worked at the Immigration and Refugee Board – Refugee Protection Division (IRB-RPD), and more, the reporter quickly stopped me and wanted to know if there was a simpler way to explain the process.

I raise these examples, not to point fingers at the media, but rather to show how the media in its desire to get the story out, is pushed to report it quickly, with reporters who have had little time to research and prepare, and with a burden to present both sides of the story so as to be “fair”.

I was involved with a similar story back in the Summer of 1999 when four ships arrived of the coast of British Columbia carrying approximately 599 migrants from mainland China (mainly Fujian Province). The hysteria at that time was that Canada was about to be overrun by illegal migrants from China and that Canada was being too lax in granting access to the refugee process from those who had arrived on the ships. A group named DAARE has prepared a detailed report of that episode in Canadian immigration history.

Ten years after that episode what amazes me is that the issues around “irregular” migration flows (that is the terms used to describe those who enter Canada without the appropriate visas or documents), continue to polarize the Canadian public. The media in response to the public interest responds by framing the issues in black and white contrast, the complex middle ground appears to be  too difficult to report.

As I write about this latest episode of migrants coming to Canada’s shores, it is the complex middle ground that interests me. Here are some of my thoughts.

First, the real story is not that this boat came to Canada but why we do not see more boats of migrants off the coasts of Canada. The Canadian public should realize that there are significant irregular migration flows all over the world. Migrants are driven from their home countries by civil wars, persecution, global climate changes, and more. Millions are on the move, 42 million in total of which 16 million are refugees. Canada’s IRB-RPD has projected an intake of about 36,000 new claims for 2008-2009. Now do the math. Canada, due to its geography (separated from most refugee producing countries by big oceans and a well watched land border) and intensive interdiction practices, takes very few of the global flows of refugees.

Second, processing refugees is expensive and complex. In addition to the costs of the IRB-RPD process (approximately $4700 per claim) there are social programs and other costs. Why is this surprising or unacceptable to many Canadians? The costs related to honouring international humanitarian commitments are high, but it is (in part) Canada’s adherence to such commitments that repeatedly results in Canada being ranked as one of the best countries to live in. I would argue that respecting the legal and human rights of migrants is part and parcel of what makes Canada the country that it is. The very people who argue that migrants have too many rights and receive too many “appeals”, I would venture, are the same people who would want to have access to all the legal safeguards and appeals if they (or their loved ones) were charged with an offence.

Third, the challenges related to irregular migration flows will only grow with time. As the results of climate change take hold, as resources decline and as the divide between the “haves” and “have nots” grows, managing global migration flows to Canada will become one of Canada’s major challenges. We can see how some of these pressures are manifesting themselves as Canada tries to manage the flows by imposing and removing visa restrictions on various countries, and by negotiating trade agreements that include the flow of migrant labour (skilled and unskilled) to Canada.

This latest story of the ship which arrived off the coast of British Columbia is symptomatic of a larger complex problem. Sorry folks, no simple answers.

Canada Immigration Minister announces language vouchers – Will they work?

16 Oct

The Minister for Citizenship and Immigration, Jason Kenney, announced a pilot project today in which the government of Canada will hand out 2000 language vouchers to new immigrants who settle in Ontario, Alberta and Nova Scotia.

The provinces were chosen to reflect their sizes (small, medium and large) and because these provinces have agreed to be a part of the pilot project. The government of Quebec administers its own immigrant settlement language programs.

The Minister was specifically asked why the pilot program is being launched. Below is the transcript of the Q&A:

Question: Why has there been such reluctance on the part of newcomers to take advantage of language training and class availability?

Jason Kenney: I haven’t heard a really good answer to that question. I have asked it myself many times. I think partly, the – you know, many people who come are focused obviously on getting started in their jobs, in settling their families. Sometimes people typically will work two or three jobs and they don’t have a lot of time to go to language class, which is why we need to find innovative ways. Like one of the ideas here is that by empowering the consumer, they can therefore shop around the different centers providing language training. Hopefully those centers will provide more and better hours, more convenient locations, will do more to provide programs that are really relevant to the language needs that people have. I really believe as a Conservative in market solutions and I think this is creating hopefully a marketplace for language training so people will get better services, more competition, better hours and I think therefore a higher level of uptake.

Part of it is also though just lack of awareness, like a lot of people just don’t know and that is one of the reasons we are doing this. We are going to send these certificates directly – these vouchers directly to people. They will get it in the mail and it is going to have like an ostensible value and I think if someone has a certificate that has a face value, like 500 hours of free language training, that will – they will be more likely to take that up than just like looking through the yellow pages for a settlement organization.

There is no doubt that English and/or French language skills greatly assist new immigrants to settle in Canada. It seems to me that if the vouchers lead to more language skill acquisition by newcomers, it may be a good thing for all. It will be interesting to see how the program rolls out and how it’s effectiveness is measured.

Deportations on the increase

13 Oct

A recent story in the media notes that deportations from Canada are on the increase. In a recent report, the Canada Border Services Agency noted that deportations from Canada had increased from 8,361 in 1999 to 12,732 in 2008. This is not surprising given the increased enforcement powers provided in the Immigration and Refugee Protecion Act (IRPA) in June 2002 and the creation of the Canada Border Services Agency in December 2003.

A brief review of the CBSA’s Reports on Plans and Priorites for 2005-2006 and 2009-2010, shows that spending on the enforcement area was projected to rise from approximately $158,729,000 (in 2004-05) to $326,392,000 (in 2006-07) to $367,145,000 (in 2011-12). The reports are at the CBSA site.

Critics of this heightened focus on enforcement (including myself) have often raised concerns about the fairness of the deportation process and the human rights risks which deportees face upon return to their countries of origin. This is not to say that no one should be deported but rather, that in many cases, the process followed makes it impossible for failed refugee claimants, overstays and others to get the facts of their case before a decision maker.

Janet Dench, Executive Director, of the Canadian Council for Refugees notes:

The Canadian Council for Refugees says the figures debunk the widely held notion that Canada is a haven for asylum seekers.

“This totally contradicts people who continue to say in the media that claimants are never deported from Canada. Once you put your foot on Canadian soil, you can stay here forever,” said Janet Dench, the council’s executive director.

“These facts contradict it and that’s what people who work with refugees know — that this is a daily business, a daily experience that claimants are very routinely removed from Canada.”

Refugee advocates and others have repeatedly noted that in the context of failed refugee claimants, the decision making process of the Immigration and Refuge Board is flawed.