Canada Gazette, Vol. 146, No. 32. Available online at < eng.html>

Transcription

1 UNIVERSITY OF OTTAWA REFUGEE ASSISTANCE PROJECT Access to Justice in Canada s New Refugee System: October 2012 Introduction This provides an overview of refugee support community responses to Bill C-31, the Protecting Canada s Immigration System Act (PCISA), 1 and other recent changes to refugee policy undertaken by the Canadian federal government. With these changes, the access to justice concerns facing refugee claimants in Canada are profoundly changed. Concurrently, these policy changes will exacerbate refugee claimants general service needs including emergency food and shelter, physical and mental health, counselling and referral services, among others. While this scan and the questionnaire that inform it stem from an interest in access to justice issues in particular, it is important to take a broad view of the barriers that influence this landscape. Recent policy shifts will impact many aspects of refugee claimants experiences in Canada; new barriers outside the hearing room, including the recent cuts to the Interim Federal Health Program (IFHP), will exacerbate those within. Correspondingly, all sectors of the refugee support community are responding, including emergency and settlement services, legal representatives, and academic researchers. As background for discussion, this report will summarize the changes brought in by the PCISA and will provide a snapshot of the current state of implementation. It will then provide a brief discussion of the new policies expected impact on access to justice for refugee claimants. The bulk of this report will provide an overview of questionnaire responses in seven service areas: Claim assistance provided by legal professionals; Claim assistance provided by someone other than a legal professional; Information dissemination; Training; Advocacy; Research; and Settlement services. This report will draw on the more than 50 responses garnered from the background questionnaire issued in August Finally, it will provide an overview of the major, cross-cutting service gaps gleaned from the questionnaire and follow-up stakeholder meeting. 1 Parliament of Canada, Bill C-31, the Protecting Canada s Immigration Act (short title). Minister of Citizenship and Immigration; February 16, Questionnaire entitled Community responses to Bill C-31 issued by the Refugee Assistance Project on August 8, 2012 and open for a period of two weeks elicited 50 responses. UORAP University of Ottawa Refugee Assistance Project 1

2 The five appendices to this overview provide detailed information on which organizations are operational in which areas (Appendix A), as well as a thorough overview of the changes in the PCISA (Appendix B) and their expected access to justice implications (Appendix C). Finally, a detailed breakdown of one category of questionnaire responses Claim assistance from a legal professional is provided (Appendix D). Recent changes to refugee policy The changes in the PCISA together with those introduced in the 2010 Balanced Refugee Reform Act (BRRA), amount to a major overhaul of the refugee system. These new laws fundamentally change the way that ordinary refugee claims are processed, including a new intake form (Basis of Claim or BOC ), a change from appointed Board Members to public servant decision-makers at the RPD, implementation of the Refugee Appeal Division (RAD), and tighter timelines throughout. The PCISA also creates new classes of claimants classified either as being from a Designated Country of Origin (DCO) 3 or by the Minister of Public Safety on arrival as Designated Foreign Nationals. 4 These claimants will receive limited access to the system, whether because they are detained, face shorter timelines, or lack recourse for negative decisions at the Refugee Protection Division (RPD). Further, the PCISA includes a number of new rules around access to Humanitarian and Compassionate (H&C) consideration, pre-removal risk assessments (PRRA), and loss of refugee and permanent resident status. 5 It is expected that most provisions of the PCISA will be implemented on December 15, On August 10, 2012, the IRB released its draft RPD 6 and RAD 7 rules for the mandatory 30-day consultation period, during which the rules were open to the public for comment and input. The consultation period ended September 10, 2012; the release of final rules can be expected ahead of the planned implementation of the PCISA. Similarly, Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA) have issued draft amendments to the Immigration and Refugee Protection Regulations on the topics of the new time limits, 8 Designated Foreign Nationals reporting requirements 9 and stays of removal pending judicial review. 10 In addition to these rules and regulations, the refugee support community can begin to get a fuller picture of the new system through the IRB s draft Claimant s Guide, which aims to give claimants information that 3 See Bill C-31, supra note 1, Clauses 58 and See Bill C-31, supra note 1, Clauses 3, 10, 81 and See Bill C-31, supra note 1, Clauses 17, 18 and Immigration and Refugee Board (Sponsoring Agency) (August 11, 2012) Refugee Protection Division Rules The Canada Gazette, Vol. 146, No. 32. Available online at < eng.html> 7 Immigration and Refugee Board (Sponsoring Agency) (August 11, 2012) Refugee Appeal Division Rules The Canada Gazette, Vol. 146, No. 32. Available online at < eng.html> 8 Citizenship and Immigration Canada (Sponsoring Agency) (August 4, 2012) Regulations Amending the Immigration and Refugee Protection Regulations (Reg. 1) The Canada Gazette, Vol. 146, No. 31. Available online at < 9 Citizenship and Immigration Canada (Sponsoring Agency) (August 4, 2012) Regulations Amending the Immigration and Refugee Protection Regulations (Reg. 2) The Canada Gazette, Vol. 146, No. 31. Available online at < 10 Canada Border Services Agency (Sponsoring Agency) (August 18, 2012) Regulations Amending the Immigration and Refugee Protection Regulations The Canada Gazette, Vol. 146, No. 33. Available online at < UORAP University of Ottawa Refugee Assistance Project 2

3 they will need to present their claim. 11 These materials provide guidelines for claimants on the refugee process; notably, they encourage and aim to support refugees representing themselves throughout the claim process. The IRB is also hiring more Designated Representatives for claimants whom they deem incapable of representing themselves. This normally includes only unaccompanied minors and adult claimants with severe mental illness beyond the post-traumatic stress disorder or other trauma-related illnesses present in many claimants. Citizenship and Immigration Canada is expected to perform an assessment of the new system s implementation in Access to Justice Concerns The changes in the PCISA, combined with the restrictive approach to their implementation indicated by their affiliated Immigration and Refugee Board (IRB) rules and CIC regulations, present a number of access to justice issues for refugee claimants. The scope and detail of these issues is vast, and is detailed in the tables found in Appendix C. Many of these issues raise questions about access to adequate legal representation, due process, equal treatment before the law, and adequate understanding across linguistic lines. These difficulties may overlap to exacerbate one another, but can be summarized as clustering around one of the five issues below. Table 1 Access to Justice Issues 12 New claim process A new procedure overall, including the new Basis of Claim form (BOC) in particular, the impacts of which on fairness and access to justice remain unknown Tight Timelines Limited Recourse for Failed Claims Limited access for certain classes of claimants Detention A systematic tightening of timelines throughout the claim process inhibiting ability to gain advice, representation, interpretation, translation, evidence, etc. Highly restricted access for all claimants to safety net mechanisms designed to catch and/or correct mistakes in first-instance decision-making at the RPD, and ultimately to prevent refoulement The creation of new categories of claimants whose designation is accompanied by limited access to the refugee system The use of lengthy mandatory detention for certain refugee claimants, which severely limits access to counsel, means of communication and evidence gathering, and has adverse mental health effects 11 An updated draft of the 2009 Claimant s Guide issued by the IRB has been circulated to stakeholders for comment. The 2009 version is available online at < 12 For a complementary method of analysing the access to justice issues in the PCISA, organized around parts of the claim process, see The University of Ottawa Refugee Assistance Project (2012) Access to Justice in Canada s New Refugee System: Stakeholder Meeting Outcome Document. See also The Refugee Forum Legal Aid for Refugee Claimants in Canada, September Available online at < RefugeeForumfinal.pdf>. See also Appendix 3 for a further breakdown and detailed outline of these issues. UORAP University of Ottawa Refugee Assistance Project 3

4 In addition to these legislative changes, recent changes to the IFHP will pose significant barriers to refugees access to critical healthcare. Beyond the very serious issue of leaving critical health problems unaddressed during the stressful time of making a refugee claim, claimants lack of access to medical coverage can be expected to negatively impact certain parts of the claim process. For example, a claimant s inability to pay for a medical assessment and certificate to prove illness could impede their ability to have a hearing delayed due to the illness. The full impact of these changes cannot yet be evaluated. The effects of the IFHP cuts are already being felt, as are the complications and dangers arising from new one-year PRRA bar and limited access to H&C. The breadth and depth of the remainder of the PCISA s effects will become gradually clearer in the months and years following its implementation. Community Responses The questionnaire issued by the University of Ottawa Refugee Assistance Project (UORAP) on August 8, 2012 generated over 50 responses from organizations and individuals aiming to address the access to justice and service gaps facing refugee claimants. This section outlines the activities being undertaken in the refugee support community. Overview Given the very recent passage of the PCISA and remaining uncertainty around its implementation and impact, many organizations indicated that they are still in the process of adapting their activities to the new law. Most respondents were located in Ontario, Quebec, and British Columbia three provinces which collectively receive almost 95 percent of refugee claims in Canada. 13 The high response rate in these areas reflects both the density of claimants in those provinces and their accordingly wellestablished refugee support communities. On a structural level, both ongoing and new activities generally fall into one of seven categories: Table 2 Community Responses Claim Assistance from a Legal Professional Claim Assistance from someone other than a legal professional Information dissemination Direct assistance to refugee claimants with their claim. This comprises legal assistance from legal professionals only, including lawyers, community legal workers, and, in some cases, immigration consultants. This includes legal representation, direct assistance with the claim process, summary legal advice, and legal information. Direct assistance to refugee claimants with their claim. Non-legal assistance may come from staff, volunteers, or support groups who are not trained as legal professionals. Non-legal assistance generally comprises assistance filling out forms or advice and information about the claim process on an individual basis. Creating and/or distributing information for refugee claimants, refugee support workers, and others, which relates to the refugee claim process, changes in policy, new legislation, and other information about settling in Canada. Includes public legal education initiatives. 13 Citizenship and Immigration Canada (2011) Facts and Figures: Immigration Overview Permanent and Temporary Residents Available online at: < UORAP University of Ottawa Refugee Assistance Project 4

5 Training Advocacy Research Settlement Beyond information dissemination, some organizations are undertaking training sessions to enable others to directly assist refugee claimants with the claim process. Training may be geared towards legal professionals or other groups. Advocacy includes public awareness raising, influencing decision makers, informational and issue-based campaigns, etc. Generally academic research, but may also be research or monitoring undertaken by non-academic organizations, for example in order to adapt to changes or support information dissemination. General settlement assistance services, which may include access to food, housing, medical attention, and other resources needed to support claimants outside of the hearing room. May overlap with information dissemination. Settlement services are often points of first access for claimants who may then receive referrals to legal help. This section will examine the survey responses in each of the above seven categories. For each category, a list of organizations engaged in activities under that heading, as well as brief details about their activities can be found in Appendix A. Claim Assistance from a Legal Professional Overview One of the fundamental access to justice concerns inherent in the PCISA and its related rules and regulations is the severe difficulty that claimants will face in accessing counsel or other meaningful legal advice. In this regard, engagement by legal professionals early on in the claim process will help to mitigate some of these most serious access to justice concerns. Legal assistance to refugee claimants comes in a variety of forms. What distinguishes this category from other assistance with the claim process is that legal assistance is carried out by a professional trained in law, generally a lawyer. This kind of assistance can include: summary legal advice about the claim process; specific advice geared toward a claimant s particular situation; assistance with preparing and filing documents; and full legal representation at any stage of the refugee claim process. Legal assistance can take the form of regular legal aid clinics, drop-in or intermittent clinics, legal advice workshops, summary legal advice help-lines or other formats where lawyers make their services available directly to claimants. Elements of the new claim process that would benefit from legal advice, assistance, or representation are: Completing the Basis of Claim form (BOC) within 15 days of filing a claim; Preparation for and representation at the RPD hearing with 30 or 60 days of submitting the BOC; Completion and perfection of RAD appeal applications within 15 working days of RPD decision; Representation before the RAD when granted a live hearing; Drafting of leave for Judicial Review applications to the Federal Court; Drafting of Stay of Removal applications to the Federal Court for claimants denied an automatic stay; UORAP University of Ottawa Refugee Assistance Project 5

6 Representing detained claimants at detention reviews; Completing H&C applications; and Pre-Removal Risk Assessments. Access to Justice in Canada s New Refugee System It is worth noting that a number of the above steps require a lawyer to be involved including applications for Judicial Review and Stays of Removal. Further, many steps would be extremely difficult to complete without legal assistance given the technical requirements and restrictive procedural rules involved. Several respondents indicated that they provide access to legal assistance for claimants. Prominent among these were legal clinics that draw funding from provincial legal aid organizations, provincial law foundations, universities and/or provincial governments. Most of these clinics have ongoing immigration and refugee law practices, although one in particular is in the process of establishing a new immigration and refugee law unit this year. Other organizations in this category offered legal assistance as part of a broader mandate, such as human rights promotion, comprehensive trauma counselling, or settlement services. Most respondents expressed uncertainty around the precise details of their programming as they adapt to the new legislation. It is important to note that, while the respondents to this questionnaire included representatives from provincial legal aid agencies, other clinics, and private practice, there is a well-established network and system through which legal services may be available to claimants beyond what was represented in this survey. Provincial legal aid agencies in British Columbia, Alberta, Manitoba, Ontario, Quebec and Newfoundland fund some legal services for refugee claimants. 14 Generally, funding is channelled through private lawyers under a certificate system, although a handful of legal aid clinics including the Refugee Law Office in Toronto, various community legal services clinics in Ontario, and the Bureau de l Immigration in Montreal offer refugee services through legal aid lawyers. The ways in which these provincial agencies adapt their services and funding criteria will have a significant impact on the legal services available to claimants. Questionnaire responses Almost 95 percent of refugee claimants make their claims in Ontario, Quebec, and British Columbia. 15 Accordingly, these three provinces have the most robust immigration and refugee legal infrastructure. Of the 17 respondents who indicated that they provide direct legal services, one is in British Columbia, one is in Alberta, ten are in Ontario, one is in Quebec, and four are national organizations. These respondents can also be broken down into categories based on organization type. Four are national organizations; they are involved in test case litigation, high-level intervention, and other select cases. Seven respondents were legal clinics offering free or reduced-price services. These were funded by provincial legal aid, provincial law foundations, universities and/or provincial governments. A number of private practice lawyers also responded, providing a sample from this community. Finally, one community multicultural organization indicated that there is a lawyer onsite who delivers a variety of services, including some refugee services. A breakdown of the claim assistance and the portions of the claim process addressed by each organization is given in Appendix D. 14 The Refugee Forum Legal Aid for Refugee Claimants in Canada, September Available online at < RefugeeForumfinal.pdf>. 15 See Facts and Figures, supra note 13. UORAP University of Ottawa Refugee Assistance Project 6

7 Claim assistance from someone other than a legal professional Overview Access to Justice in Canada s New Refugee System A number of organizations indicated that they provide assistance to claimants navigating the refugee claim process. This assistance comprises individual information and advice, assistance with forms, and referrals to legal services. The delivery of these services may be through staff members, trained volunteers, or peer support groups. It does not include legal services. As noted above, new refugee procedures under the PCISA will severely limit access to counsel and meaningful legal advice. Alternate sources of advice and assistance may prove to be an effective way of addressing this access to justice gap either by providing timely referrals to legal representation, or by filling certain roles that would normally be performed by a legal professional. Importantly, given the high stakes of refugee claims and the extremely narrow room for error in the new claim process, non-legal service providers will face particular challenges in providing the level of service necessary to effectively help claimants. Questionnaire Responses Ten respondents indicated that they provide non-legal assistance to refugee claimants. Two of these organizations are in British Columbia; eight are in Ontario. Overall, this category represents a fairly diverse set of activities, including: Tours aiming to familiarize claimants with IRB procedure and hearing rooms; Drop-in support groups; Volunteer assistance with filling out claim forms (mainly BOCs); Peer support groups; Support letters for the IRB; Referrals to legal services; and Assistance acquiring documentation. In all cases, the direct claim assistance provided to refugee claimants is one part of broader services offered by a given organization. These organizations are often one of the first points of contact for claimants arriving in Canada. Their services may include housing, settlement support, emergency services, and information dissemination. In light of the tighter timelines ushered in under the PCISA, reaching claimants early with urgent services and with claim assistance will be vital to providing any meaningful help with the claim process. Information Dissemination Overview Information dissemination involves creating and/or distributing information for refugee claimants, refugee support workers, and others. This information relates either to the refugee claim process, changes in policy, new legislation, or other topics related to settling in Canada. This category includes public legal education initiatives. UORAP University of Ottawa Refugee Assistance Project 7

8 As stated above, the full impact of the PCISA, IFHP cuts, and other policy shifts remains unclear. Full implementation of the new claim system is not expected until late 2012 or early 2013, and clear understanding of the impact of these changes will continue to evolve after implementation. The breadth and depth of changes has left the legal, NGO and academic communities scrambling to stay abreast of new developments. Given all this, it is unsurprising that community responses to the PCISA are most active in the field of information dissemination. Access to timely and accurate information about the changes in refugee law and the new claim process will be vital to mitigating access to justice concerns. Especially at the present moment, this type of activity is vital to the community in order to stay abreast of the evolving landscape. As with any activity aiming to educate or assist claimants under the new refugee claim process, a high degree of care must be given to ensure the quality of advice or information being distributed. Questionnaire Responses Thirty-three respondents indicated involvement in information dissemination. Of these, three are national organizations, eight are in British Columbia, one is in Alberta, one is in Manitoba, seventeen are in Ontario, and two are in Quebec. Their activities included: Public legal education in various forms, including information sessions, public workshops, conferences, panel discussions, etc.; Written materials, orientation packages for claimants, country reports, support documents for lawyers, etc.; Reports to government and policy papers for public consumption; One-on-one information sessions with support workers; and Academic and organizational research products. The target audience for the information being produced varies depending on the nature and purpose of the information sharing. Primary audiences are refugee claimants, support workers, legal professionals, the public, government departments, non-governmental organizations and intergovernmental organizations. Topics vary, and include preparing for a claim, assisting with a claim, general information on the changes in the PCISA, and information on other policy changes. Training In addition to information dissemination, some organizations are undertaking training sessions to enable trainees to assist refugee claimants directly with their claims or with another part of their experience in the refugee system (e.g. detention). Training may be legal or non-legal, but in all cases enables trainees to directly assist claimants. Training initiatives carry a number of advantages. In times of changing service needs, they may provide vital updates to service delivery personnel. The impact of such initiatives is often broad, as effectivelytrained refugee support workers and legal professionals can go on to address the needs of numerous claimants. Finally, although not specifically explored here, initiatives that allow trained personnel to then train others carry especially high potential for a broad impact on the ground. UORAP University of Ottawa Refugee Assistance Project 8

9 Questionnaire Responses All four respondents undertaking training are located in Ontario. It can be expected that other organizations those involved in providing non-legal claim assistance to claimants, private law firms, clinics, etc. will engage in some form of formal training as well. Based on questionnaire responses, a number of training activity streams are being explored, including: Legal professionals training settlement workers to assist claimants directly; Legal professionals training NGOs and students on detention in the refugee system; Internal staff training at private law firms; and Training foreign lawyers to assist claimants. Beyond these initiatives, we can also assume that any non-legal personnel who are directly assisting refugee claimants with parts of their claim, practicing lawyers adjusting to the new system, and various other refugee support workers will be updating their training to adapt to the new system. It can be expected that details of other initiatives will become available as they take form in the coming months. Advocacy Overview The refugee advocacy community has been extremely active throughout the legislative processes around the PCISA and similar bills that came before Parliament in recent years. Additionally, a remarkable advocacy presence has been cultivated around the recent cuts to the IFHP. Advocacy initiatives fit into this scan as tools for addressing the root causes of access to justice gaps in the refugee claim system in Canada. Questionnaire Responses Twelve respondents indicated that they continue to engage in advocacy around the PCISA, IFHP cuts, or other refugee policy changes. Four of these are prominent national organizations the Canadian Council for Refugees (CCR), Amnesty International, the Canadian Civil Liberties Association, and the Canadian Association of Refugee Lawyers (CARL). Beyond these groups, one respondent was in British Columbia, one in Manitoba, four in Ontario, and two in Quebec. These groups activities included: Public awareness campaigns at the local, provincial, and/or national levels including through editorials, op-eds, multi-media projects, etc.; Legal challenges, including test cases, interventions, constitutional challenges, etc.; and Advocating for legal reform and/or lobbying government for policy change. Research Overview Respondents research activities range from multi-year, academic research projects to service and advocacy organizations monitoring initiatives around IFH cuts and deportation practices. These activities UORAP University of Ottawa Refugee Assistance Project 9

10 fit into the access to justice landscape in that they will provide vital evidence and documentation of the impacts and outcomes of recent policy changes. In that sense, they engage with the foundations of the access to justice gaps generated by recent policy changes, and will often elicit the tangible outcomes of these gaps. Questionnaire Responses A total of sixteen respondents identified monitoring and research as being among their activities. Of these, three are national organizations (the CCR, IFHP Coalition, and CARL), three are in British Columbia, eight are in Ontario, and two are in Quebec. The following is a list of researchers/research organizations who responded to the questionnaire, along with their area of research (see also Appendix A for details): Lina Anani Barrister and Solicitor (Toronto) Tracking deported claimants CARL (National) Research on various topics of law stemming from recent changes Centre for Criminology and Sociolegal Studies (Toronto) Research on how lawyers write opinion letters for legal aid certificates and affiliated access to justice concerns Janet Cleveland, Researcher at the Hans & Tamar Oppenheimer Chair in Public International Law (Montreal) Academic study on detention of asylum seekers and consequences of PCISA; publishing results of most recent study David Asper Centre (Toronto) Research responding to CARL Litigation Committee questions EKA cooperative (Vancouver) Monitoring healthcare access; undertaking country condition research IFHP Coalition (National) Research on impacts of IFHP cuts Sharalyn Jordan Faculty of Ed, SFU (Burnaby) Research on how people from sexual- and gender-based violence background engage with new claim process Montreal Holocaust Memorial Centre (Montreal) Delphine Nakache, University of Ottawa, and Idil Atak, McGill University (Ottawa, Montreal) Research project on policy consequences and human rights impacts of DCO designation OCASI Envisioning Global LGBT Rights (Toronto) Four-year, multi-country research project on experiences of LGBT asylum seekers in Canada from legal and service perspectives Petra Molnar Diop (Centre for Refugee Studies) (Toronto) Masters thesis on discourse around changes to refugee policy PLE society of British Columbia (Vancouver) Research to identify and fill public legal education needs Welland Heritage Council and Multicultural Centre (Welland) Collaborative research with Brock University Youssefi Law Professional Corporation (Toronto) This list provides a preliminary overview of the variety of research initiatives that academics and practitioners across the country are pursuing. As with many activity areas, it can be expected that further initiatives will arise as the landscape evolves. UORAP University of Ottawa Refugee Assistance Project 10

11 Settlement Overview Settlement services across the country serve as points of first contact and comprehensive assistance for refugee claimants. They are a vital source of information, guidance, and referrals, and provide crucial support outside of the hearing room which enables claimants engagement with the refugee process to be as effective as possible. Questionnaire Responses Thirteen respondents indicated that they engage in settlement support; five are in British Columbia, seven are in Ontario, one is in Quebec. Many of these organizations were also active in other categories, especially in information dissemination, advocacy and claim assistance from someone other than a legal professional. Their settlement activities include: Housing; Counselling; Integration; Community linkages; Practical advice around settlement; Help accessing municipal and provincial services; and Referrals to professional counsellors, legal services and other support organizations. As noted above, settlement organizations are crucial points of first contact, and are uniquely positioned to support claimants in a variety of ways throughout the claim process. Service Gaps As shown above, planned and ongoing refugee support community activities aim to mitigate the many access to justice concerns that come with the PCISA and other policy changes. Many of these activities remain in their earliest stages, as organizations move cautiously in the uncertain, pre-implementation environment. Conversely, activities addressing the more immediate concerns around the PRRA bar and H&C cuts, which are currently impacting refugee claimants, are already underway, and are planning for more permanent solutions. Overall, however, the dominating theme among service providers is uncertainty whether about the technicalities of the policy changes, the nature of their impending implementation, or the ways that others within the refugee support community will respond. With this uncertainty in mind, UORAP team met with a number of key stakeholders from the legal, academic, and NGO communities working in this field in order to discuss the current access to justice landscape. Collectively, this group worked to identify the major service gaps given what we currently know about the PCISA s and other policies implementation, and established or planned community responses. This conversation produced a list of service gaps activities and resources that would help to address the serious access to justice concerns that will face refugee claimants under the new process, but which are not currently provided at an adequate level. Generally speaking, stakeholders identified as concerns the availability and quality of the following services. UORAP University of Ottawa Refugee Assistance Project 11

12 Table 3 Service Gaps Information General information about the claim process for claimants, community workers, and lawyers Legal Advice Interpretation Training Information/resource sharing Communication with Stakeholders Addressing Root Issues Legal advice and representation for claimants and in support of community workers Interpretation and translation services; Training and education on operating within the new system for lawyers, community workers, and students Shared and/or standardized information, templates, and other resources for legal and community workers to support operations in the new system Communication channels and cooperation with various stakeholders, including CBSA, CIC, refugee lawyers, immigration consultants, community service workers, students, and refugee claimants themselves Strategy and support for broader initiatives that address root issues, including test case litigation and Charter challenges In an ideal scenario, every refugee claimant would benefit from the robust support system that would result from each of the above categories being fulfilled. Unfortunately, limited resources, regional discrepancies in legal aid and other services, and continuing uncertainty mean that the many refugee support community activities outlined above only partially address the service needs of claimants. Further, while there may be opportunities for collaboration between agencies, it is extremely difficult to identify these possibilities due to many agencies lacking a clear picture of their own and others activities. Conclusion This report aims to provide an overview of refugee support community responses to the changing access to justice landscape in Canada s refugee system. As is clear from the many responses from individuals and organizations in the refugee support community, these recent changes have sparked a great deal of activity in this sector. It is clear that the PCISA, the cuts to the IFHP and other aspects of recent changes to refugee policy will pose significant barriers for claimants and the people who support them. However, at this early stage, there remain a number of unknowns that inhibit a detailed discussion of the access to justice gaps that will face refugee claimants once the new policies have been fully implemented and the refugee support community s initiatives are underway. At a time with so much uncertainty, it is difficult for organizations to determine which new activities will carry the most positive impact, let alone to coordinate with others to find ways to complement each other s work. Despite this uncertainty, it is our hope that the information in this report facilitates a preliminary understanding of the refugee support community s reaction to these changes, and helps organizations and individuals with similar or complementary activities to identify one another. UORAP University of Ottawa Refugee Assistance Project 12

13 APPENDIX A - List of survey respondents in each category Appendix A 1) Claim Assistance from a legal professional (see also Appendix D for more detail) Organization Location Notes Canadian Civil Liberties National (HQ Involvement in selected legal challenges. Association Ottawa, ON) Interim Federal Health Program Coalition National IFHP/CARL coalition (health professionals, lawyers, service providers) engages in test case litigation. Amnesty International Ottawa, ON Focus has been to support failed refugees in PRRA and H&C applications. Given new timelines, it is unclear whether AI will be able to support failed claimants who wish to access the new RAD. Emma Andrews Law Firm Vancouver, BC Private law firm representing refugee claimants. Makes a lawyer available to clients in detention by phone. Calgary Legal Guidance Calgary, AB New immigration program (as of March 2012) that provides legal services to low income immigrants and refugees. Downtown Legal Services Toronto, ON Working to figure out how DLS can offer refugee/immigrant representation within the confines of the academic term, given new timelines. HIV & AIDS Legal Clinic Ontario Toronto, ON Legal Aid Clinic with an immigration and refugee practice since summer Barbra Schlifer Commemorative Clinic Toronto, ON Currently assessing the options (in conjunction with other legal clinics) to address changes to service delivery needs in light of the changes under Bill C-31. Clients are women who have experienced violence. Lina Anani Barrister and Solicitor Youssefi Law Professional Corporation Chantal Desloges Professional Corporation Flemingdon Community Legal Services Welland Heritage Council and Multicultural centre South Ottawa Community Legal Toronto, ON Toronto, ON Toronto, ON Toronto, ON Tracking refugee clients who are being deported in order to expose if and when they come to harm in their country of origin. Refugee lawyer, training NGOs and students regarding detention and the refugee system. Private law firm representing refugee claimants, primarily those from Iran. Private law firm representing refugee claimants. Undertaking research and training on RAD and IFH changes. Legal representation and advice for claimants. Long Mangalji LLP Toronto, ON Private law firm representing refugee claimants. Welland, ON Lawyer works in our site on all aspects of the immigration process under one umbrella. Services Just Solutions Clinic - Montreal City Mission program (and Committee to Aid Refugees) Ottawa, ON Montreal, QC Represent refugee claimants, plus conduct community legal education for community agencies, providing training on refugee law topics. Legal information and advice to refugee claimants and refused refugee claimants regarding the refugee claim process and the recourses available following a negative IRB decision. May be submitting an increased number of administrative stay applications due to the one-year bar on PRRA applications, the fact that clients who submitted an H&C prior to or along with their PRRA in the previous system will no longer benefit from the simultaneous study of the two applications, and the increased speed of removal procedures. 2) Claim Assistance from someone other than a legal professional Organization Location Notes Public Legal Education Society of British Columbia Vancouver, BC READY Tours to orient claimants to process. UORAP University of Ottawa Refugee Assistance Project 13

14 Appendix A Rainbow Refugee Committee Vancouver, BC Drop-in info/support groups (esp. for BOC stage); referral to legal services. Mennonite Coalition for Refugee Ottawa, ON Foreign lawyers and volunteers to assist claimants with Support BOC, and RPD. Metropolitan Community Church of Toronto, ON Advice for claimants; peer support group; support Toronto letters. Ecumentical Support Committee for Hamilton, ON Assistance with forms. Refugees Red Cross Toronto, ON First Contact Program referrals to lawyers. St. Christopher House Toronto, ON Assistance with forms, simple applications. Salvation Army Toronto Harbour Toronto, ON Help with immigration forms; referrals to lawyers. Light Ministries Immigrant and Refugee Services Micah House Hamilton, ON Volunteers assist with BOC; H&C assistance planned; access to Legal Aid. Hamilton Urban Core Community Hamilton, ON Assistance with documentation, applications and Health Centre appeals. 3) Information Dissemination Organization Location Notes Emma Andrews Law Firm Vancouver, BC Presentations and workshops on the refugee process (not yet developed for new process). Rainbow Refugee Committee Vancouver, BC New materials for workshops on the claim process. Public Legal Education Society of British Columbia Vancouver, BC PLE in print, multilingual information, classes, webinars, community sessions. Settlement Orientation Services Vancouver, BC Workshops and direct information to refugee claimants. Kinbrace Community Society Workshops for service providers; Preparing for My Refugee Hearing guide; READY tours to orient claimants to process MOSAIC Vancouver, BC Materials to inform claimants of changes; workshop at provincial conference on IFH cuts; reports to BC government. EKA Cooperative Vancouver, BC Information delivery to clients. Affiliation of Multicultural Societies and Service Agencies (AMSSA) Vancouver, BC Informing membership of updates regarding the new law; information dissemination via website. Calgary Legal Guidance Calgary, AB Infomation sessions for immigrant-serving organizations on new refugee process. Immigration Matters Canada Coalition Winnipeg, MB Public education around PCISA and IFH cuts. Downtown Legal Services Toronto, ON Public legal education, information for community service workers. South Ottawa Community Legal Ottawa, ON Information sessions for community agencies. Services HIV Aids Legal Clinic Ontario Toronto, ON Public legal education in HIV/AIDS sector to clients and service providers; written materials and presentations. Amnesty International Ottawa, ON Country information for initial IRB hearings; support documents for lawyers. Barbra Schlifer Commemorative Clinic Toronto, ON Public legal education materials on gendered impact of the PCISA. Lina Anani Barrister and Solicitor Toronto, ON Production of reports to NGOs/UN. Mennonite Coalition for Refugee Kitchener, ON Information to services providers, churches, etc. Support Ecumenical Support Committee for Hamilton, ON Public education reports, workshops. Refugees Red Cross Toronto Toronto, ON First Contact Program, which includes orientation package for claimants, and workshops run by lawyer from RLO. UORAP University of Ottawa Refugee Assistance Project 14

15 Appendix A Christopher House Toronto, ON Information workshops for staff and partner organizations on PCISA. Salvation Army Toronto Harbour Light Toronto, ON Info sessions for newcomers and community workers. Ministries Immigrant and Refugee Services Chantal Desloges Professional Toronto, ON Community Seminars on the PCISA. Corporation Flemingdon Community Legal Services Toronto, ON Public legal education with settlement agencies, clients; pamphlet distribution. Long Mangalji LLP Toronto, ON Public legal education workshops. METRAC Toronto, ON Public legal education workshops, legal information resources. Hamilton Urban Core Community Health Centre Hamilton, ON Information to claimants directly, information sessions/workshops, educational materials. OCASI Envisioning Global LGBT Rights Toronto, ON Public education workshops, policy papers, panel discussions. City of Toronto Housing Toronto, ON Public education, workshops and monitoring of homelessness among refugees. Just Solutions Clinic/Committee to Aid Montreal, QC Legal Information to claimants. Refugees AGIR (Action LGBTQ with Immigrants and Refugees) Montreal, QC Information to community members and general public. 4) Training Organization Location Notes Mennonite Coalition for Refugee Kitchener, ON Training foreign lawyers to assist claimants. Support South Ottawa Community Legal Ottawa, ON Training conference for Ottawa settlement workers. Services Lina Anani Barrister and Solicitor Toronto, ON Training NGOs and students on detention in the refugee system. Chantal Desloges Professional Corporation Toronto, ON Training staff on changes to the refugee system. 5) Advocacy Organization Location Notes Canadian Civil Liberties Association National (Ottawa Public awareness, legal challenges, law reform. HQ) IFHP Coalition National Advocacy against IFHP cuts; test case litigation, media reports. Canadian Council for Refugees National (Montreal HQ) Temporary Foreign Workers project, Interim Federal Health Cuts, PCISA advocacy activities. MOSAIC Vancouver, BC Collaborates with other groups to engage in advocacy and awareness-raising. Immigration Matters Canada Coalition Winnipeg, MB Public outreach around PCISA and IFH cuts. Barbra Schlifer Commemorative Clinic Toronto, ON Past advocacy against C-31 and seeking new advocacy avenues. Hamilton Urban Core Community Health Centre Hamilton, ON Local and provincial awareness campaigns around PCISA. Katie Dorman, Medical student at Hamilton, ON Editorials, personal advocacy around IFHP cuts. McMaster Canada-Hungary Educational Foundation Ottawa, ON Personal advocacy around PCISA and DCO list in particular. UORAP University of Ottawa Refugee Assistance Project 15

16 AGIR (Action LGBTQ with Immigrants and Refugees) Janet Cleveland, Researcher Hans & Tamar Oppenheimer Chair in Public International Law Montreal, QC Montreal, QC Access to Justice in Canada s New Refugee System Appendix A Multimedia project about PCISA and LGBTQ Mexican claimants; community organizing. Working with stakeholders to produce policy proposals for alternatives to detention. Montreal Holocaust Memorial Centre Montreal, QC TBD. 6) Research/Monitoring Organization Location Notes IFHP Coalition National Impact of IFH cuts. PLE society of BC Vancouver, BC Research to identify and fill public legal education needs. EKA cooperative Vancouver, BC Monitoring healthcare access; undertaking country condition research. Sharalyn Jordan Faculty of Education, Simon Fraser University Burnaby, BC Research on how claimants from sexual- and gender-based violence background engage with new claim process. Welland Heritage Council and Welland, ON Collaborative research with Brock University. Multicultural Centre Lina Anani Barrister and Solicitor Toronto, ON Tracking deported claimants. Delphine Nakache, University of Ottawa, Idil Atak, McGill University Ottawa, ON Montreal, QC Research project on policy consequences and human rights impacts of DCO designation. Petra Molnar Diop (CRS) Toronto, ON Master s thesis on discourse around changes to refugee policy. OCASI Envisioning Global LGBT Rights Toronto, ON Four-year, multi-country research project on experiences of LGBT asylum seekers in Canada from legal and service perspectives. David Asper Centre Toronto, ON Research responding to CARL Litigation Committee needs. Centre for Criminology and Sociolegal Toronto, ON Studies Janet Cleveland Montreal, QC Academic study on detention of asylum seekers and consequences of PCISA; publishing results of most recent study. Montreal Holocaust Memorial Centre Montreal, QC TBD. Youssefi Law Professional Corporation Toronto, ON TBD. Research on how lawyers write opinion letters for legal aid certificates and access to justice concerns. 7) Settlement Organization Location Notes Kinbrace Community Society Vancouver, BC Housing and support for claimants. Vancouver Association for Survivors of Torture Vancouver, BC Settlement, counselling and community-based programs. MOSAIC Vancouver, BC Various settlement and integration programs. EKA cooperative Vancouver, BC Variety of settlement services, including around immigration issues. Inland Refugee Society Vancouver, BC Food, housing, etc. Welland Heritage Council and Multicultural Centre Welland, ON On-site lawyer assisting with settlement process (no representation); various other settlement services. Metropolitan Community Church of Toronto, ON Assistance with immigration process and various Toronto Ecumenical Support Committee for Refugees (with N. Hamilton Community Health Centre ) Hamilton, ON other settlement needs. Practical support with settlement needs. Christopher House Toronto, ON Newcomer programs to provide settlement and UORAP University of Ottawa Refugee Assistance Project 16

17 Salvation Army Toronto Harbour Light Ministries Immigrant and Refugee Services Toronto, ON Access to Justice in Canada s New Refugee System Appendix A immigration support to refugees and refugee claimants. Urgent assistance and referrals to services. Micah House Hamilton, ON Housing, help accessing Ontario works, etc. Hamilton Urban Core Community Health Hamilton, ON Various settlement services to claimants. Centre AGIR (Action LGBTQ with Immigrants and Refugees) Montreal, QC Support work on a variety of issues. UORAP University of Ottawa Refugee Assistance Project 17

18 APPENDIX B - Overview of changes in Bill C-31 Appendix B Bill C-31 amends a number of statutes, including the Immigration and Refugee Protection Act (IRPA), the Balanced Refugee Reform Act (BRRA), and the Marine Transport Act. The following table summarizes the major changes contained in Bill C-31, with particular focus on those that relate directly to refugee claimants. New or Changed Under Bill C-31 Ordinary Claim Process Initial intake: Basis of Claim form (BOC) Initial Hearing - Timeline Initial Hearing Decision-maker Refugee Appeal Division (RAD) Manifestly unfounded claim designation Pre-BRRA/BRRA Pre-BRRA: Personal Information Form (PIF) BRRA: Disclosure Interview Pre-BRRA: Average of 19 months BRRA: 60 days for Designated Country of Origin (DCO) claimants, 90 days for others Pre-BRRA: Governor-incouncil appointees BRRA: Public Servants Pre-BRRA: In IRPA but never enacted BRRA: Was to come into force and be accessible to all claimants; 120 days to render decision except DCO claims (30 days) Pre-BRRA /BRRA: Decision-maker may deem a claim manifestly unfounded if it is clearly fraudulent Recourse for failed claimants (beyond built-in RAD) Re-opening Pre-BRRA /BRRA: IRB applications at can reopen cases even if IRB heard at higher level Description/Notes The BOC replaces the current PIF and the proposed disclosure interview from the BRRA. The BOC forms the foundation of the refugee claim. For Port of Entry claims, the BOC must be filed with the Refugee Protection Division (RPD) within 15 days. For inland claims, BOC must be filed with an immigration officer before having their eligibility interview. We can expect claimants to be sent away with the BOC and told to return when it is filled out, and for access to Legal Aid to be limited until after the eligibility interview. It is unclear what kind of timelines (if any) regional offices will impose. Timelines between filing a claim and the initial hearing, to be set out in regulation, will be within: 30 days for inland DCO claimants; 45 days for Port of Entry (POE) DCO claimants; and 60 days for all others. Hearing dates are set by CIC or CBSA officers; IRB members have jurisdiction to grant adjournments. Initial RPD decisions made by public servants. RAD decisions to be made by Governor-in-council appointees (current Board Members to stay on to deal with backlog and make RAD decisions). The RAD will provide a full appeal on fact and law. This will generally be a paper review but may include an in-person hearing in some circumstances. Claimants will have 15 working days following a negative decision to file and perfect their appeal at the RAD. The following groups will not have access to the RAD: Designated Foreign Nationals (DFN); Claimants from a DCO; Claims made under exceptions to the Safe Third Country Agreement; Claims found to have no credible basis; and Claims found to be manifestly unfounded. Decisions that cause the cessation or vacation (IRPA ss )of refugee status will likewise not be open for appeal to the RAD. The RAD will have 90 days to render all decisions except those with an in-person hearing. The Minister of Citizenship and Immigration and Minister of Public Safety are given more flexibility to intervene at RAD. Decision-maker must rather that may deem a claim manifestly unfounded if it is clearly fraudulent. Designation as manifestly unfounded restricts access to the RAD. The IRB cannot re-open applications decided at a higher level e.g. RPD cannot re-open RAD or Federal Court decisions even if new evidence is available or a clerical error was made. Leave to seek Pre-BRRA /BRRA: The following groups will not have their removal automatically stayed UORAP University of Ottawa Refugee Assistance Project 18