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Paul Aterman
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Paul Aterman
2017-03-06 15:45
Thank you.
The Immigration and Refugee Board reports to Parliament through the Minister of Immigration, Refugees and Citizenship. Through the work of its four divisions—the refugee protection division, the refugee appeal division, the immigration division, and the immigration appeal division—the board renders about 40,000 quasi-judicial decisions per year.
The people who are the subject of those decisions are among the most vulnerable consumers of legal services in Canada. Some of them may have been in Canada only a few weeks or months. Many are unfamiliar with our legal system. Many do not speak English or French. Access to justice—that is, being able to retain competent counsel at an affordable cost—is a concern for courts and tribunals across this country, and it's a concern that applies equally to the IRB.
We do design our processes in such a way that self-represented people can navigate them, but the fact is that many of the issues we deal with are complex and technical, because the law itself is complex and technical. About one in five cases before the board involves someone who is not represented by counsel. We would much rather deal with people who have competent counsel than deal with people who are unrepresented. We are able to do our job much more efficiently in those circumstances.
To give you a sense of the numbers, of the 40,000 cases in 2016, about 8,000, or around 20%, involved people who were not represented. Around 31,500, or 80%, had counsel. Of those 31,500, about 12% were represented by immigration consultants. Last year we saw around 3,800 immigration consultants.
Integrity and competence are crucial to consultants' capacity to make a positive contribution to the immigration and protection of refugees system. From the perspective of the IRB, the provisions on consultants adopted in 2004 marked an important step forward for access to justice, as they allowed for the setting of minimal standards, and brought in complaint and discipline mechanisms that did not exist prior to that.
However, there is always room for improvement. The changes made in 2011 strengthened the system. Currently the representatives targeted by the regulation must prove to the IRB that they are members in good standing of their professional association before they can appear before the board. We check to see if they are suspended or subject to disciplinary procedures.
I think it is important for the committee to be aware of the fact that the work done by immigration consultants before the IRB is quite different from the work done by consultants when they appear or represent clients before IRCC.
With IRCC, consultants are guiding their clients through an application process. In contrast, at the board, consultants represent their clients in hearings. The IRB is the main forum in which consultants can litigate, and litigating requires very particular skills. Counsel in a hearing needs to know the difference between evidence and argument. Counsel needs to know what the right legal test is, what the best litigation strategy is, how to examine or cross-examine a witness. They have to be able to think on their feet. They have to be persuasive.
The board supports the regulators' efforts to improve standards of practice, and we also support the regulators' efforts to investigate and act on alleged breaches of professional conduct. To that end, in July 2015 we revised our disclosure policy to take advantage of the legislative changes that now make it easier to disclose this kind of information to regulators.
The board now has a transparent process for reporting issues of concern to regulators. The policy applies not just to consultants but to lawyers as well. However, we refer cases to a regulator only when we think there has been a sufficiently serious breach of a code of conduct or ethics.
Since 2015, we've made a relatively small number of referrals, 10 to the immigration consultant regulator and two involving members of the bar. However, that should not be taken as an indication that there is not room for improvement—far from it. In the view of the board, there is considerable scope for the quality of litigation conducted by immigration consultants to improve. This is why we also support education and prevention whether by the regulator itself or through our own efforts. For example, the board holds sessions for immigration consultants that are aimed at improving their standard of practice, and if we receive invitations from professional organizations of immigration consultants to offer training, we gladly accept those invitations.
We hope to build on the relationship we have with the regulator and with groups such as the Canadian Association of Professional Immigration Consultants, because we're aiming to improve the standard of litigation practice conducted by immigration consultants.
Thank you.
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