Archive | March, 2011

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

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