Advocating for Refugees under the New System: New Practice Management Challenges

1. Advocating for Refugees under the New System: New Practice Management Challenges CBA BC Refugee Lawyers Group CLE Conference February 8, 2013 Presentation by Peggy Lee Associate Lawyer at Elgin, Cannon & Associates

2. Recent Changes to Refugee System • Immigration and Refugee Protection Act • amended by Balanced Refugee Reform Act (June 2010) • amended by Protecting Canada’s Immigration System Act (June 2012) • Refugee Protection Division Rules(Dec. 15, 2012) • IRB Chairperson’s Guidelines(Dec.15, 2012) • Guideline 6 – Scheduling & Changing Date or Time • Guideline 7 – Preparation & Conduct of RPD Hearing • Guideline 8 – Vulnerable Persons before the RPD • Ministerial Orders – DCOs & DFNs(Dec. 2012)

3. New Refugee Claim Timelines

4. New Procedural & Practice Issues • Accepting retainers for refugee claimants POE / Inland / Detained claimants • Completing refugee claim forms Declarations / Extensions/ Amendments • Scheduling RPD Hearings & Applications Time limits / Applications to Change Date • Preparation & Conduct of RPD Hearings Disclosure / Minister’s Intervention / Procedures

5. Accepting Retainers for POE Refugee Claimants • Are you able to submit the completed BOC Form to RPD within the time limit of less than 15 days? • Are you available for the scheduled RPD hearing date in less than 45 days for DCOs or 60 days for non-DCOs?

6. Accepting Retainers for Non-detained Inland Claimants • Are you able to submit the completed BOC Form to RPD within a reasonable time period? • If claimant is out-of-status, advise on risk of CBSA arrest before refugee eligibility is determined. • Are you available for the RPD hearing in less than30 days for DCOs or 60 days for non-DCOs?

7. Accepting Retainers for Detained Inland Claimants • Are you able to submit the completed BOC and Formsto CBSA immediately (or latest within 3 days)? • Is there a qualified interpreter that is available immediately? • Are there potential eligibility or inadmissibility issues that could complicate the case? • Are you available for the RPD hearing in less than30 days for DCOs or 60 days for non-DCOs?

8. Becoming ‘Counsel of Record’ • RPD Rule 14(1): Subject to extent of limited retainer, as soon as counsel for a claimant agrees to a date for a proceeding or as soon as person becomes counsel after proceeding is fixed, the counsel becomes “counsel of record” • RPD Rule 14(2): if the claimant has notified the Division of counsel’s limited retainer, counsel is counsel of record only to the extent of the limited retainer and ceases to be counsel as soon as those services are completed

9. Removal of ‘Counsel of Record’ • RPD Rule 15: • Counsel must provide written request first to Claimant, then if applicable to the Minister and then to the RPD no later than 3 working days before next hearing; • if less than 3 working days then must appear on date fixed to make oral request to be removed as counsel; • Counsel remains ‘counsel of record’ unless the request to be removed is granted • RPD Rule 16: • Claimant can remove counsel as counsel of record by providing written notice to RPD and Minister if Minster is a party; • Counsel ceases to be counsel of record as soon as RPD receives the notice

10. New Set of Refugee Claim Forms • Refugee Claim Document Checklist (IMM 5745) • Generic Application Form for Canada (IMM0008) • Additional Dependants/Declaration (IMM0008DEP) • Schedule A – Background/Declaration (IMM5669) • Schedule 12 – Refugee Claimants Inside Canada (IMM 0008 – Schedule 12) • Basis of Claim Form • Use of Representative (IMM 5476)

11. Completing the Basis of Claim • BoC Q.2(a) “Have you or your family ever been harmed, mistreated or threatened by any person or group?” If ‘YES’ explain in detail –what, when, who, why, any similarly-situated? • insufficient time to draft BoC for POE & detained claimants • skeletal summary of basis of claim especially if insufficient time. (eg. Yes, I fear political persecution from the state government because I am an opposition party member.) • modify BoC declaration in narrative (eg. Due to insufficient time to prepare the BoC, it is not possible to declare that the information is ‘complete, true, and correct’ and an BoC amendment may be forwarded as soon as possible.)

12. Old PIF vs New BoC Form • PIF is brief recitation of claim: “The PIF is supposed to be a brief recitation of the applicant’s claim, not a documentation of his whole case.” (Erdos v. Canada, 2003 FC 955 at para. 20) • BoC Form purpose: “to gather information from a refugee claimant about their claim to help prepare and conduct the hearing properly.” (CIC Website, ‘Notice-Q&A: PCISA’)

13. Seeking BoC Extensions • applicable only to POE Claimants • RPD Rule 8: BoCwritten extension application to RPD “no later than 3 working days” before time limit • must include decision sought, supporting reasons & views of other party if known; not required to give evidence in affidavit or statutory declaration RPD Rule 50 • May be better to submit skeletal BoC within time limits than seek BoC extension.

14. BoC Extension – Medical Reasons • RPD Rule 8(3): Claimant must provide medical certificate by qualified medical practitioner • RPD Rule 8(4): medical certificate must set out particulars of medical condition that prevent claimant from providing completed BoC within prescribed time limit • RPD Rule 8(5): if no medical certificate, show efforts to obtain, medical reason particulars and why prevent claimant provide BoC

15. Special Abandonment Hearing - Failure to Provide BoC • RPD Rule 65(2): abandonment hearing for failure to provide BoC held within 5 working dayson which BoC due; claimant must provide BoC at special hearing (unless already provided to RPD) • RPD Rule 65(4): factors to consider include explanation by claimant, any other relevant factors, fact that claimant ready to start or continue proceedings • RPD Rule 65(5): original medical certificate if claimant explanation includes medical reasons

16. Amending the BoC Form • RPD Rule 9: • provide original and copy to RPD • sign & date each page & underline changes or additions made; • sign & date declaration “complete, true & correct”, understand same force & effect as if made under oath • amendments no later than 10 days before hearing date

17. To amend or not amend the BoC? • RPD Rule 27(3): RPD may notify Minister re “integrity issues” including:… (b) a substantial change to the basis of the claim from that indicated in the Basis of Claim Form first provided to the Division; (c) information that, in support of the claim, the claimant submitted documents that may be fraudulent; or (d) other information that the claimant may be directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

18. Caselaw on PIF amendments • amendment obligations & credibility: negative credibility inference if not amend PIF with important information directly connected to claim (Prak v. Canada, 2006 FC 1516 at para. 4); • delayed amendments: negative credibility inference if no reasonable explanation for delayed amendments (Lahocsinsky v. Canada, 2004 FC 275 at para. 10) • before affirmation at RPD hearing: “the Board was not incorrect, in the circumstances, to draw negative inferences from the applicants’ failure to include such information, especially after they affirmed at the beginning of the hearing that the PIFs were complete and true.” (Delthalawe v. Canada (MCI), 2011 FC 1188 at para. 17)

19. Scheduling RPD Hearing- Counsel’s Availability for Hearing • RPD Rule 3(2): officer must select date closest to last day of applicable time limit, unless claimant agrees to earlier date • RPD Rule 3(3): officer must consider counsel’s availability if the client has retained counsel at time of referral and officer informed counsel available to attend a hearing on one of the dates provided by RPD • Practice Note: Counsel should submit available dates & times within 5 days of 30/45/60-day limits to CIC/CBSA/RPD(together with BoC & Forms)

20. IRB Guideline 6 - Scheduling • IRB CG6, 3.3.1: scheduling based on operational & legislative requirements & principles of natural justice • IRB CG6, 3.3.3: except in RPD hearings set by CIC/CBSA, IRB endeavors to contact counsel for available dates • IRB CG6, 3.3.4: IRB attempts to accommodate counsel’s calendar but is not bound by counsel’s availability • IRB CG6, 3.3.6: IRB may schedule when counsel is not available

21. Applying to Change the RPD Hearing Date • RPD Rule 54(2) Time limit & content of written application: • (a) application must be made without delay • (b) received by RPD no later than 3 working days before date fixed for proceeding • (c) include 3 dates and times no later than 10 working days of originally fixed date • RPD Rule 54(3) Oral application: • oral application if less than 3 working days before proceeding

22. No Date or Time Changes Allowed except… • RPD Rule 54(4) exceptional circumstances only: • RPD must not allow application unless there are exceptional circumstances • (a) change required to accommodate vulnerable person or • (b) an emergency or other development outside the party’s control and the party has acted diligently

23. If counsel retained or availability of counsel provided after hearing date fixed… • RPD Rule 54(5): RPD must allow change of date application if • (a) claimant retains counsel no later than 5 working days after hearing date fixed • (b) counsel retained not available on date fixed for the hearing • (c) application made in writing • (d) application made without delay & no later than 5 working days after hearing date fixed • (e) claimant provides at least 3 dates & times when counsel is available

24. Procedural Fairness: Right to Counsel • right to counsel: right to counsel before RPD is a procedural fairness issue (Bryndza v. Canada (MCI), 2012 FC 1250at para. 3; Cervenakova v. Canada (MCI), 2012 FC 525 at para. 58) • procedural fairness factors: RPD must consider Silochfactors [Bryndza v. Canada (MCI), 2012 FC 1250at para.11 citing: Siloch v. Canada (MCI) (1993), 151 NR 76 (FCA) at para. 7]: (1) whether the applicant has done everything in her power to be represented by counsel; (2) the number of previous adjournments granted; (3) the length of time for which the adjournment is being sought; (4) the effect on the immigration system; (5) would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry; (6) the fault or blame to be placed on the applicant for not being ready; (7) were any previous adjournments granted on a peremptory basis; (8) any other relevant factors.

25. Front-end Security Screening: RPD Hearing Postponement • IRB CG6, 7.8: the RPD may administratively postpone certain proceedings when confirmation from CBSA on front-end security screening of a claimant has not been received • Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening • If RPD has not received confirmation of approved security screening 5 days before the hearing, it will be postponed.

26. Document Disclosure for RPD Hearings • Rule 34(3): refugee supporting documents must be received by parties no later than 10 days before hearing date • if provided in response no later than 5 days before hearing date

27. RPD May Notify Minister: Exclusion& Inadmissibility • Rule 26: RPD must notify the Minister without delay before the hearing if there is a possibility of exclusion under Section E or F of the Refugee Convention; RPD may notify Minister during hearing • Rule 28: RPD must notify the Minister in writing without delay of possible inadmissibility or ineligibility;

28. RPD May Notify Minister: Possible Integrity Issues • Rule 27: RPD must notify the Minister without delay before the hearing if there is a possibility of “issues relating to the integrity of the Canadian refugee protection system” ; RPD may notify Minister during hearing • Rule 27(3): “integrity issues” include: (a) information that the claim may have been made under a false identity in whole or in part; (b) a substantial change to the basis of the claim from that indicated in the Basis of Claim Form first provided to the Division; (c) information that, in support of the claim, the claimant submitted documents that may be fraudulent; or (d) other information that the claimant may be directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

29. Refugee Hearing Procedures and Conduct of Hearing • RPD Rule 10: rules explicitly set down reverse order questioning at RPD • Rule 10(1): if Minister not a party, RPD first then claimant’s counsel • Rule 10(2):if Minister intervene on exclusion, Minister first, then RPD, then claimant’s counsel • Rule 10(3): if Minister intervene non-exclusion, RPD first, then Minister, then claimant’s counsel • RPD 10(7): representations must be made orally at the end of the hearing unless RPD orders otherwise • RPD 10(8): RPD member must render oral decision & reasons at end of hearing unless it is not practicable to do so

30. Procedural Fairness: RPD Hearings • Procedural fairness at RPD Hearings: DPF requires that Claimants be allowed “adequate opportunity to tell their story in full, to adduce evidence in support of their claim, and to make submissions relevant to it” (Han v. Canada (MCI), 2013 FC 42 at para. 11; citing Thamotharen v. Canada (MCI), 2007 FCA 198 at para. 39) • Procedural fairness 5-factors: (1) the nature of the decision being made and the procedures followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectation of the individual challenging the decision; and (5) the choices of procedure made by the agency. (Baker v. Canada (MCI), [1999] SCJ No 39 at paras. 21-28).

31. Handling Legacy Claims • RPD referral before Dec. 15, 2012 • will continue to use Personal Information Form (Basis of Claim Form is not needed) • legacy claims not subject to regulatory time limits of new cases • hearing date will be fixed by IRB official rather than CIC/CBSA referring officer • RPD hearing before either Governor in Council (GIC) appointed RPD Members whose mandate has not expired and authorized by Chairperson to hear legacy claims; OR by public servant RPD member • updated Chairperson’s Guidelines apply to Legacy Claims • Legacy claims subject to Judicial Review before Federal Court (CIC states no access to RAD and error in legislation not specifically bar legacy claims from RAD access)

32. New Code of Legal Ethics in BC • Code of Professional Conduct for British Columbia(January 1, 2013) • replaced Professional Conduct Handbook • based on Federation of Law Society of Canada’s “Model Code of Professional Conduct” • harmonizes BC legal ethics regulation with national regulations • enables interprovincial mobility of lawyers

33. BC Code of Professional Conduct • Chp.3.1-1 “competent lawyer” means a lawyer who has an applied relevant knowledge, skills and attributes in a manner undertaken on behalf of a client and nature and terms of the lawyer’s engagement, including: • (a) knowing general legal principles and procedure and the substantive law and procedure for the areas of law in which the lawyer practices; • (h) recognizing limitations in one’s ability to handle a matter or some aspect of it and taking steps accordingly to ensure the client is appropriately served; • (i) managing one’s practice effectively

34. Practice Management Problems • Scenario 1: You are retained to represent an inland DCO refugee claimant (30 days). You provided your available dates to CIC but the officer scheduled the hearing on a date you are not available. What can you do? • Scenario 2: You are retained to represent a detained POE refugee claimant who must complete the BoC within the next 5 days. There is no interpreter available. What can you do?

35. Refugee procedures must not override Charter guarantees • Singh v. Canada (MEI) [1985] 1 SCR 177 at para. 70: “Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so….The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s.7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles.”