Speaker's Corner: LAO refugee changes amount to cutbacks

If you broke your leg, would you look for a remedy on the Internet or go to the hospital? The answer is clear. But what if the hospital put out a notice telling you to cure yourself over the Internet?

We would be outraged. And we should be similarly upset with Legal Aid Ontario’s suggestion that refugees prepare their cases based on Internet information. How is this a serious suggestion for refugees who arrived only recently in traumatic circumstances with no computer, English skills or money?

This is merely one of our concerns about the plans discussed in LAO vice president David McKillop’s April 15 article in Law Times in which he defends LAO’s changes to its refugee services.

On Dec. 15, 2012, a new refugee determination system came into force. The federal government dramatically overhauled the system. Refugee claimants now have only 15 days from instituting their cases to prepare their basis of claim forms and they must appear at hearing within 60 days. These times frames create nearly impossible conditions to gather and present evidence.

The new law also distinguishes refugees based on nationality by creating designated countries of origin. The criteria for such designations are suspect. Designation can be based on statistics from the Immigration and Refugee Board alone and not on human rights records. The consequences of a designation are severe. People from these countries are subject to even tighter time frames and have no access to an appeal at the newly created refugee appeal division. The government can deport them before the Federal Court hears a judicial review.

National organizations, including the Canadian Association of Refugee Lawyers and the Canadian Council for Refugees, have criticized the changes for contravening constitutional rights.

And because refugee claimants in the new refugee determination process are subject to such quick time frames, they’re not here long enough to obtain work permits. As such, they face even greater hurdles when it comes to their ability to pay for legal services.

Ontario has a tradition of providing access to justice to low-income people through LAO. Today, many refugees are contributing to our society because LAO provided them with the means to successfully plead their case. Now, in light of these harsh new laws, LAO needs to step up to secure access to justice. Instead, it’s cutting back.

The innovative changes LAO mentions are actually part of a series of cuts that will dramatically undermine refugees’ access to qualified counsel. Refugee claimants with lawyers are much more likely to succeed in their applications than those who represent themselves.

Besides the suggestion that refugees rely on Internet information to prepare their claims, LAO proposes having unsupervised paralegals represent them.

Refugee representation requires knowledge of natural justice and Federal Court case law. It requires knowledge of administrative and constitutional law. In Singh v. Minister of Employment and Immigration, the Supreme Court of Canada found refugee hearings engaged s. 7 of the Charter of Rights and Freedoms because of the risk of persecution.

Despite regulation by the Law Society of Upper Canada, unsupervised paralegals are simply not able to provide high-quality representation in most refugee claims.

LAO says legal clinics will represent more refugees. Clinics are already working at capacity. They have given a clear message to LAO that the private certificate program is the cornerstone of refugee representation. Not all legal clinics provide services in the immigration and refugee law area. In fact, few specialize in refugee representation and those that do are unable to take on an additional caseload.

LAO is considering not providing certificates for refugee hearings, particularly for people from designated countries. While LAO says it will assess all cases individually, the operating presumption is that hearing coverage for people from designated countries will be exceptional. This would be a major cut.

While we commend LAO for funding appeals to the refugee appeal division as a pilot project, it fails to mention a major cut already in place.
LAO has eliminated opinion certificates for Federal Court applications. These certificates allowed unsuccessful refugee claimants to seek a lawyer to start the judicial review process. The certificates covered the filing of a notice of application and writing an opinion letter to LAO concerning the merits of funding the judicial review. Now, LAO expects refugee claimants to find a lawyer who will put out approximately $200 in disbursements and $400 in legal fees on the chance that if it deems there to be merit, there may be retroactive payment.

This is unworkable. Lawyers are refusing to take cases on speculation. We know of no other jurisdiction that touts speculation as a modernized approach to access to justice.

We’re seeing the fallout. Refugees unable to afford legal fees can’t access the Federal Court. The new law ended preremoval checks for most people, so they’re subject to deportation if they fail to apply to the Federal Court.

Refugees are also resorting to unscrupulous unqualified people who ghost write Federal Court applications by drafting ineffective documents under their name. Self-representation is an option at the Federal Court, but representation by a non-lawyer isn’t.

LAO indicates that in light of the new refugee laws, it’s finalizing a model that “ensures access to justice to this marginalized population.” We have consistently made it clear that the changes proposed by LAO will do anything but ensure access to justice.

We call on LAO to continue to fulfil its statutory mandate.

Maureen Silcoff is chairwoman of the access to justice  committee at the Refugee Lawyers’ Association of Ontario and Kristin Marshall contributed to this article on behalf of the Inter-Clinic Immigration Working Group.

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