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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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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.

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.