Canadian Refugee Procedure/Designated Representatives

The RPD Rules regarding the appointment of representatives for minors and for those who are unable to appreciate the nature of their proceedings are of significant and enduring importance to proceedings before the Refugee Protection Division. Globally, children below 18 years of age constitute about half of the world's refugee population.[1] Most children who file a refugee claim in Canada have a familial representative appointed for them for their proceedings before the IRB. A smaller number of claimants are considered to be unaccompanied; approximately 300 separated children arrive in Canada each year and claim refugee protection.[2] This number of unaccompanied children seeking asylum had considerably augmented in the past decades.[3]

A167(2): Board's responsibility to designate a representativeEdit

Subsection 167(2) of the IRPA states:

Representation
167(2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.

The Board must designate a representative for minors and incompetent personsEdit

The categories of persons who the Board must designate a representative for are minors and incompetent persons, as noted in the Board's public commentary on the analogous provision in the Immigration Division Rules:

A representative must be designated for any person who is the subject of an admissibility hearing or a detention review if this person is under the age of 18 years (a "minor") or is unable to appreciate the nature of the proceedings (an "incompetent person") (Immigration and Refugee Protection Act, subsection 167(2)).[4]

The Board's duty to designate a representative for minors reflects Canada's international law obligations. The IRPA states that "this Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory" (IRPA s. 3). The Convention on the Rights of the Child (CRC) provides, in Article 22(1), that:

State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law procedures, shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the Convention and in other international human rights or humanitarian instruments to which the said States are Parties.[5]

Article 22 of the CRC obliges states to ‘take appropriate measures’ to ensure the child receives ‘appropriate protection and humanitarian assistance’, thus imposing a positive obligation on the state to ensure that adequate procedures are put in place to protect the child as appropriate.[6]

How the provisions regarding designated representatives interact with the Board guidelines on vulnerable personsEdit

The Board also has a Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada. A designated representative will only be appointed if the person is either under eighteen years of age or unable to appreciate the nature of the proceedings, a standard which is considerably narrower than the criteria for recognition as a vulnerable person, which usually occurs where a claimant’s ability to present their case is severely impaired.[7] In a number of cases, the Board has refused to appoint a designated representative but has gone on to recognize that the person was vulnerable and allowed procedural accommodations.[8] As the academic Janet Cleveland observes, if an adult’s ability to understand the proceedings is so impaired as to warrant the appointment of a designated representative, she is necessarily also severely impaired in her ability to present her case and should automatically be considered vulnerable.[9]

The Board must not delay a proceeding until a minor has turned 18 as an alternative to designating a representativeEdit

The Federal Court of Appeal in Stumf v. Canada stated that the obligation to designate a representative for a minor arises at the earliest point at which the Board becomes aware of the facts that entail such designation.[10] The following public commentary from the IRB on the previous version of the rules continues to apply: "The Division will not delay a proceeding until the minor has reached 18 merely to avoid having to designate a representative."[11] In fact, pursuant to the Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, certain categories of children such as unaccompanied children are to be given given scheduling and processing priority.[12] Furthermore, given that a designated representative is to assist a minor claimant with preparing their Basis of Claim form, gathering evidence, and instructing counsel (and not just at the hearing itself) a minor may be prejudiced where they did not have such assistance in preparing their claim and the lack of such assistance may properly vitiate any proceedings before the RPD, as was the case in Duale v. Canada.[13]

The absolute nature of the requirement to appoint a designated representative for minors in the Canadian system may be contrasted with the European approach which allows Member States to 'refrain from appointing a representative where the unaccompanied minor is 16 years old or older, unless he/she is unable to pursue his/her application without a representative'.[14] This European practice has been severely criticized by academic commentators.[15]

Rule 20(1)-(3) - Duty of counsel or officer to notify the Division of relevant circumstancesEdit

The text of the relevant rule reads:

Designated Representatives

Duty of counsel or officer to notify
20 (1) If counsel for a party or if an officer believes that the Division should designate a representative for the claimant or protected person because the claimant or protected person is under 18 years of age or is unable to appreciate the nature of the proceedings, counsel or the officer must without delay notify the Division in writing.

Exception
(2) Subrule (1) does not apply in the case of a claimant under 18 years of age whose claim is joined with the claim of their parent or legal guardian if the parent or legal guardian is 18 years of age or older.

Content of notice
(3) The notice must include the following information:
(a) whether counsel or the officer is aware of a person in Canada who meets the requirements to be designated as a representative and, if so, the person’s contact information;
(b) a copy of any available supporting documents; and
(c) the reasons why counsel or the officer believes that a representative should be designated.

Rule 20(3)(a): the notice from counsel or the officer should indicate whether they are aware of a person in Canada who meets the requirements to be designated as a representativeEdit

As per Rule 20(1), if counsel for a party or if an officer believes that the Division should designate a representative for the claimant or protected person because the claimant or protected person is under 18 years of age or is unable to appreciate the nature of the proceedings, counsel or the officer must without delay notify the Division in writing. As per Rule 20(3)(a), the notice must indicate whether counsel or the officer is aware of a person in Canada who meets the requirements to be designated as a representative and, if so, the person’s contact information. Rule 20(3)(b) also indicates that the notice should include a copy of any available supporting documents. In practice, these two requirements will often work together in that a notice from counsel advising that a DR is appropriate will often include a medical report which comments on who may be an appropriate representative. This was illustrated in Singh v Canada, a decision from the Immigration Appeal Division interpreting its similar rule, wherein the panel wrote:

In his letter to the Immigration Appeal Division (the “IAD”), dated October 30, 2012 the appellant’s counsel advised that the appellant is unable to appreciate the nature of proceedings of his appeal due to his medical condition. The appellant’s counsel requested the appellant’s sister Mandeep Kaur be designated as his representative.... In considering to appoint the appellant’s sister Mandeep Kaur as his representative I have taken into account the conclusion in the psychological assessment report dated October 4, 2012. The report was based on the interviews conducted by the clinical psychologist, Dr. Lydia Kwa with the appellant and his immediate family members. In her report, Dr. Kwa stated as following: "Given Gurpreet’s cognitive limits and his anxiety, he is not able to represent himself competently. He would be best served by having a member of his family assume responsibility as legal representative to act in his best interests....His sister Mandeep seems to be a good choice at this time to assume that role as his legal representative."[16]

Rule 20(3)(b): the notice from counsel or the officer should include a copy of any available supporting documentsEdit

As noted in the Board's public commentary on the previous version of the rules, it is expected that counsel will provide evidence of the claimant's age or mental condition: "When notifying the Division, counsel should provide copies of all available supporting documents such as birth certificates and medical or psychological reports".[11]

Can a designated representative from one province act as a representative in a proceeding or for an individual in another province?Edit

Yes. This is emphasised by the notice provision in Rule 20(3) which instructs the person providing the notice to indicate if they are aware of any "person in Canada who meets the requirements to be designated as a representative [emphasis added]". Generally speaking, a DR is not acting as a lawyer, so even where a designated representative is a lawyer regulated by a provincial or territorial law society, the rules on such counsel acting inter-provincially should not apply, though this may depend on the exact way in which the provisions, including what the practice of law is and when inter-provincial practice is allowed, are framed in the relevant statutes.

Justification for the requirement that counsel or an officer notify the Board of any perceived need for a DREdit

Rule 20(1) provides that the referring officer who does the intake of the refugee claim and any counsel for the claimant (or protected person, as the case may be) are to advise the IRB in writing "without delay" if they believe that a claimant requires an independent designated representative. The rationale for this is manifold, including:

  • The time inherent in appointing an independent DR and the importance of avoiding adjournments: Where an independent designated representative will need to be appointed by the Board, this will take time and may require a postponement of a proceeding. Appointing a representative at the earliest opportunity based on notice from an officer or counsel obviates the need for such postponements. Such scheduling realities have commonly been noted by panels of the Board, such as with the following comment from a panel of the Immigration Appeal Division when interpreting its analogous rule: "It was clear from the outset that should the panel’s opinion be that a designated representative was required, and that the appellant’s sister was not an appropriate candidate, the matter would have to be adjourned to a future date pending appointment of a new designated representative."[17]
  • The value of an early appointment given the role of the designated representative in preparing for the hearing: Appointing a representative at the earliest stage allows them to be involved in case preparation. This is commonly emphasized by panels of the Board, e.g. "The panel prefers to proceed with caution by having a designated representative involved and available to play whatever role is required in preparing for and participating at the hearing. [emphasis added]"[18] The instructions to designated representatives in the Board's guide for DRs instructs them that "You must meet the minor or the person who is unable to appreciate the nature of the proceedings as early as possible in the process to explain your role and responsibilities and to begin to assist them with their case."[19]
  • The fact that needs may only become apparent over time, and thus may not be evident to the Board: There will be cases where the need for a designated representative only becomes apparent over time. This was well illustrated by a decision of Immigration Appeal Division Member D. Collison wherein the panel noted that "Appellant’s counsel also explained that it was only in meeting with the appellant on a number of occasions over an extended period of time, mostly after the March 2008 admissibility hearing, that it became apparent she did not understand the nature of the proceedings and required a designated representative."[20] In this way, placing the duty on counsel to notify the Board avoids a situation where a DR is necessary but would not be appointed on the Board’s own initiative because it is not immediately apparent on the face of a file or upon initially interacting with a claimant that such a representative is necessary.
  • The fact that claimants may be reluctant to self-identify as having a disability: The Convention on the Rights of Persons with Disabilities committee has noted that migrants with disabilities ‘are often hesitant to disclose their disabilities to authorities for fear of affecting their asylum applications’.[21] As such, this type of rule may promote greater disclosure of needs to the IRB to ensure that appropriate assistance is put in place.

Criticisms of automatically making a parent the designated representative for an accompanying minor claimantEdit

UNICEF has been critical of the fact that Rule 20(2) automatically grants designated representative status to a parent or guardian without first consulting the child whose application is at stake. In this way, they argues that "Canada’s immigration and refugee policy does not sufficiently provide for children’s right to be heard."[22] However, this presumption that a child's parent or guardian should be their designated representative in the refugee determination process is endorsed by the UNHCR Handbook: "A child – and for that matter, an adolescent – not being legally independent should, if appropriate, have a guardian appointed whose task it would be to promote a decision that will be in the minor’s best interests. In the absence of parents or of a legally appointed guardian, it is for the authorities to ensure that the interests of an applicant for refugee status who is a minor are fully safeguarded."[23]

Rule 20(4) - Requirements for being designatedEdit

Requirements for being designated
(4) To be designated as a representative, a person must
(a) be 18 years of age or older;
(b) understand the nature of the proceedings;
(c) be willing and able to act in the best interests of the claimant or protected person; and
(d) not have interests that conflict with those of the claimant or protected person.

Criteria to consider when appointing a representative for a childEdit

As per the Board's guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues, when determining whether to designate a particular person as the representative for a child claimant, the Member shall determine whether the proposed DR satisfies all of the mandatory criteria in RPD Rule 20(4) and should also consider the linguistic and cultural background, age, gender and other personal characteristics of the proposed DR and that of the child claimant.

Rule 20(4)(b): When will a proposed designated representative be found not to understand the nature of the proceedings?Edit

It should be noted that this is a distinct test from that in Rule 20(5) which focuses on a claimant’s (or protected person’s) ability to appreciate the nature of the proceedings, whereas this rule focuses on whether the proposed person does in fact understand them. The tribunal must advise the designated representative of its role in the proceeding.[24] The UN Committee on the Rights of the Child has commented on the obligations that representatives should have towards unaccompanied children, including knowledge of country conditions in the country of origin.[25]

Rule 20(4)(c): When will a designated representative be found not to be willing and able to act in the best interests of the claimant or protected person?Edit

As per Rule 20(4)(c), to be designated as a representative, a person must be willing and able to act in the best interests of the claimant or protected person. When has it been found that a potential representative was not willing and able to act in the best interests of the claimant or protected person?

  • When the claimant does not trust the proposed representative: Even if the proposed representative is willing to act in the best interests of the claimant or protected person, their ability to do so may be stymied where the claimant in question does not trust the proposed representative. This appeared to be the case in one matter before the Immigration Appeal Division, which observed that "There is evidence, from the appellant’s side, that she has a very tense relationship with her family, particularly her sister [the proposed DR], and that she feels her sister does not have her best interests in mind." On this basis, the panel concluded that the proposed DR was not appropriate.[26]
  • When the proposed representative does not appreciate their role: In Black v. Canada the Court set aside a decision on the basis that the designated representative was not “able” to act in the individuals' best interests because the representative did not fully appreciate the implications of her role as designated representative. That was a decision interpreting the analogous rule of the Immigration Appeal Division, which, like the RPD rules, requires that the person appointed must understand the nature of the proceedings and that they be “willing and able to act in the best interests of the person to be represented.” In that case, "The [panel] asked the Applicant’s mother to act as a designated representative. Even though she had no appreciation of the significance of this role or how to best represent the interests of the Applicant, she willingly stepped into the breach to help her son. The Applicant’s mother was obviously appointed as an expedient. She just happened to be in the room to support her son and, being a mother, she naturally stepped forward." In that case, "The Applicant’s mother insist[ed] in an affidavit filed in the[] proceedings that she was not informed of the duties of a designated representative. She also did not know that part of a designated representative’s responsibility is to arrange for counsel. Nothing was explained to her at the hearing."[27] The court concluded that "In my view, the ability to act in the Applicant’s best interests requires more than a sympathetic and supportive relative, and the [Board] and counsel will need to satisfy themselves that anyone who does assume the role is appointed in a timely manner and has the necessary understanding to act in the Applicant’s best interests."[28] The court specifically noted the importance of the designated representative understanding their obligations with respect to obtaining counsel, having an appreciation for what evidence needs to be called, and the substantive issues and facts at issue in the case.

Separate considerations apply to terminating the appointment of a designated representative once their behaviour indicates that they are not properly assuming their role, see: Canadian Refugee Procedure/Designated Representatives#Circumstances in which a designated representative ceases to be appropriate.

Rule 20(4)(d): When will a designated representative be found to have interests that conflict with those of the claimant or protected person?Edit

As per Rule 20(4)(d), to be designated as a representative, the person must not have interests that conflict with those of the claimant or protected person. When have such conflicts been found?

  • When the proposed representative will also act as a witness in the proceeding: In interpreting its analogous rule, the Immigration Appeal Division has held that where a proposed designated representative is to be called as a witness, this will conflict with their role as designated representative and lessen the weight which could be accorded their testimony as they would be present throughout the hearing in their role as designated representative and hear all of the testimony before testifying themselves: "Further, as Ms. Jangbahadur is expected to be called as a witness, her role, as the designated representative, who will be present throughout the appellant’s testimony, could well lessen the weight the panel may be able to attribute to her own testimony."[29] This is distinct from situations in which the DR provides testimony on behalf of the claimant but is not themselves an independent witness being called to testify about their direct personal knowledge of facts at issue.
  • When the representative refrains from providing relevant evidence as a result of their personal interests or concerns: As an example, Refugee Appeal Division Member Rena Dhir presided over a case in which the Designated Representative did not disclose relevant information as a result of fears of disclosing details related to her immediate family: "the [DR] feared the Chinese authorities and feared for her own self and family if they came to know about her involvement in the appellant’s refugee claim in Canada" and as a result "failed to provide information which may have addressed the RPD’s credibility concerns and further substantiated the risk the appellant faces in China", such as be contacting the family members to ask that they provide evidence.[30] In that case, the RAD concluded that "it is clear that because of the conflicts of the designated representative with the appellant’s interest, she did not meet the ‘mandatory criteria’ and also did not fulfill all ‘duties’ that are required for a designated representative, such as acting in the best interests of the appellant."[30]

Rule 20(5) - Factors for determining whether a claimant or protected person is unable to appreciate the nature of the proceedingsEdit

Factors
(5) When determining whether a claimant or protected person is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including
(a) whether the person can understand the reason for the proceeding and can instruct counsel;
(b) the person’s statements and behaviour at the proceeding;
(c) expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and
(d) whether the person has had a representative designated for a proceeding in another division of the Board.

Rule 20(5)(a): Whether the person can understand the reason for the proceeding and can instruct counselEdit

The Board's public commentary on the analogous Immigration Division rule states that a person is unable to appreciate the nature of the proceedings vis-a-vis this criterion where "the person cannot understand the reason for the hearing or why it is important or cannot give meaningful instructions to counsel about his or her case."[4]

Rule 20(5)(b): Assessing a person's statements and behaviour at the hearingEdit

When determining whether a claimant is unable to appreciate the nature of the proceedings, a panel of the Board is to consider the person's statements and behaviour at the proceeding. An example of this comes from the case Ryvina v. Canada, where the claimant was described as having difficulty answering simple questions and where the claimant indicated that as a result of her nervousness she was unable to answer questions related to the core of the claim, such as threats that she received in her country.[31] The Board's public commentary on the analogous Immigration Division rule states that "an opinion regarding competency may be based on the person's own admission [of incompetency]".[4] Similarly, in M. v. Canada, the court stated that "it is obvious from the transcript that the claimant was not rational throughout the course of the hearing" and that it was "apparent that he was unable to give coherent testimony about the issues raised by his claim for refugee status and protection". The court held that the Member "should have stopped the hearing at that point and considered alternative procedures to determine the claim".[32]

Rule 20(6) - What proceedings the designation applies toEdit

Designation applies to all proceedings
(6) The designation of a representative for a person who is under 18 years of age or who is unable to appreciate the nature of the proceedings applies to all subsequent proceedings in the Division with respect to that person unless the Division orders otherwise.

What proceedings does the designation of the representative apply to?Edit

As per Rule 20(6), the designation applies to all subsequent proceedings in the Division unless the Division orders otherwise. "Proceeding" is a defined term in the Rules, and it is defined as including a conference, an application, or a hearing (Rule 1). The Federal Court holds that the need for a designated representative applies to the entirety of the proceedings and not just the hearing itself.[28] This allows the representative to, for example, retain and instruct counsel and to assist in gathering evidence pre-hearing (as detailed in Rule 20(10) below).

Rule 20(7) - Ending a designation where a person reaches 18 years of ageEdit

End of designation — person reaches 18 years of age
(7) The designation of a representative for a person who is under 18 years of age ends when the person reaches 18 years of age unless that representative has also been designated because the person is unable to appreciate the nature of the proceedings.

A designation ends automatically by operation of law when a person reaches 18 years of age and no explicit steps need be taken by the BoardEdit

The Board's public commentary on the analogous Immigration Division Rules states that "A designation is ended automatically by operation of law when the person who is the subject of the [proceeding] reaches 18 years of age."[4]

Rule 20(8) - Termination of designationEdit

Termination of designation
(8) The Division may terminate a designation if the Division is of the opinion that the representative is no longer required or suitable and may designate a new representative if required.

Circumstances in which a designated representative ceases to be appropriateEdit

The Division may (but need not) terminate a designation if the Division of the opinion that the representative is no longer required or suitable. Situations where a representative is no longer suitable have included:

  • When the proposed representative does not carry out their obligations: The Board's Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues note that "There may be situations where the person who was designated to be the representative ceases to be an appropriate representative of the child. For example, the person may prove unwilling or unable to make themselves available for pre-hearing conferences. In these situations, the CRDD should remove the person as designated representative and designate another appropriate representative."[12]

The Division may terminate a designation, but it is not always obliged to do soEdit

Rule 20(8) provides that the Division may terminate a designation if the Division is of the opinion that the representative is no longer required or suitable. It does not require that such a designation be terminated, particularly where it is ambiguous whether or not such a representative is any longer required (as in a case where there is a factual dispute as to whether a claimant is a minor or not). The courts have encouraged panels of the Board to exercise their discretion when deciding whether or not to terminate a designation in a given case. For example, in Kurija v. Canada there was a factual dispute about whether the claimant was a minor or not: "At the hearing on May 11, 2012, counsel informed the Board member that Mr Kurija was under 18 and had difficulty understanding English (although an interpreter had not been requested). However, the Board member made a finding that Mr Kurija spoke adequate English and a finding that he was of age based on his passport documents and other evidence, and ordered the designated representative to leave the proceedings."[33] The court concluded that this had been procedurally unfair, and in so doing encouraged panels of the Board to consider allowing a representative, who is already present at the hearing, to remain in such circumstances: "In this instance the Designated Representative was present and was in a position to assist the applicant and the Board. Rather than making an adverse credibility finding to the effect that the applicant had provided a false birth certificate, a finding which colours all of the Board’s decision and which appears to be incorrect in light of the additional evidence, why should the Board not exercise its discretion liberally and permit the social worker to remain and assist the claimant?"[34]

Rule 20(9) - What the panel must do before designating the person as a representativeEdit

Designation criteria
(9) Before designating a person as a representative, the Division must
(a) assess the person’s ability to fulfil the responsibilities of a designated representative; and
(b) ensure that the person has been informed of the responsibilities of a designated representative.

Common categories of persons who are designated as representativesEdit

The Board's public commentary on the analogous Immigration Division Rules states that "The member presiding at a proceeding will decide whether to designate a representative and who that representative will be. The member will usually, but not always, designate a parent, another relative, or legal guardian to be the representative, if that person meets the specified requirements."[4] A trusted friend who appears capable of assisting and protecting the best interests of the claimant or protected person is also a common category of person to appoint. An individual is not barred from acting as a designated representative simply because she is also a refugee claimant.[35] Should no representative be available or deemed suitable who is related to or otherwise known to the claimant, the RPD will select a representative using a regional list of lawyers and social services (or non-governmental) support agencies.

Designation generally occurs at the outset of the hearing, but the Board may designate a representative prior to that, including via a paper-based processEdit

As the Board stated in its commentary on the previous RPD Rules, "generally, the member who presides at a proceeding designates the representative at the outset of the proceeding." That said, as that commentary noted, "if required, any member of the Division may designate a representative before a proceeding begins".[11] As the Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues notes, in cases where a child is accompanied by his or her parents, one of the parents is usually appointed as the designated representative of the child.[12] For unaccompanied minors, those guidelines provide that a designated representative for the child should be appointed as soon as possible following the assignment of the panel to the claim. The guidelines note that this designation would usually occur at a pre-hearing conference, but it may be done earlier.[12]

The requirement in Rule 9(a) that the panel assess the person's ability to fulfil the responsibilities of a designated representative and ensure that the person has been informed of the responsibility of a designated representative prior to so designating the person will normally take place at a hearing or pre-hearing conference, but that it need not and the designation can be done prior to that (on paper) and then confirmed at an oral proceeding. This is in fact the common process for appointing an independent designated representative for an unaccompanied minor claimant. The representative will complete the Board's Confirmation of Acceptance to Act as a Designated Representative form in which the proposed representative signs a declaration that they are willing and able to fulfil the designated representative's responsibilities and that they understand the responsibilities of such a representative. A Member of the Board will then review the paperwork and designate the proposed representative by signing the Board's standard form for this purpose.

Designation is assumed once a parent receives a letter appointing them the representative of their child who is claiming in the same proceedingEdit

A question has at times arisen about whether a designated representative was appointed or not in a given case. The Board will, as a matter of course, send a letter to the proposed representative naming them to the role and describing their duties as a representative. The Board's form letter states that the individual can "refuse to assume this role if [they] contact the Refugee Protection Division within ten days of receiving the letter".[36] Even where the appointment is not mentioned on the record or in the panel's reasons, the proposed representative will be taken to have assumed the role for their co-claimant child where they attend the hearing after having received such a letter, as the court stated in Plancher v. Canada: "There is nothing in the file indicating that this letter was never received by the principal applicant and her counsel. Since no evidence is presented indicating the principal applicant’s refusal, I must conclude that she accepted to act as the minor applicant’s designated representative."[36]

The Rules do not require a designated representative to be appointed for an eligibility interviewEdit

Rule 20(9) provides that it is the IRB that designates a person as a representative and it sets out what the Division must do prior to designating a representative. As such, under the RPD Rules a representative cannot be designated by an officer prior to a claim being referred to the Board since designating a representative is something that only the Board itself can do. This is consistent with policy statements from the Board, including in the Chairperson's Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues which state that "a representative will be designated as soon as possible after the claim of an "unaccompanied" minor is referred to the Division [emphasis added]."[12] A separate question may arise about the reliability of statements made by minors or those who are incompetent to an officer at the border, but that will generally be a matter of the weight that should be ascribed to the statements in question.

When feedback was solicited by the Board as this rule was being drafted, several respondents made comments regarding the rules which pertain to designated representatives. One respondent indicated that they would prefer to see the rules amended so a representative can be designated by the officer at the eligibility interview rather than only the Division. The IRB stated that it agrees that a designated representative should be designated as early as possible in the process, but noted that the IRB is of the view that it lacks the jurisdiction to designate a representative prior to the referral of a claim, and that the officer lacks the authority to do so at the eligibility interview.[37] As such, the rule was not changed as a result of that feedback during the comment period of these rules.

The RPD rules place a number of obligations on different actors in the refugee claim process, including the Minister, counsel for claimants, and in Rule 3, the officers who assess and refer claims. The Rules impose a number of obligations on officers prior to the referral of a claim, including specifying actions they must take (e.g. fixing a date for the hearing, Rule 3(1)), how the officer is to exercise their discretion when carrying out such actions (e.g. rules about what hearing date they must choose, Rule 3(2)), and questions they must ask a claimant (e.g. the claimant's preference of location, Rue 3(3)), and so it is unclear why the Board took the position that as a matter of jurisdiction the Board could not further qualify how an officer is to carry out such duties where a would-be claimant has a disability, is a minor, etc. Regardless, examining Rule 20 as drafted, the rule arguably does not impose such a duty. The RPD Rules do require the referring officer to inform the RPD whether the claimant may need a designated representative and to provide the contact information for any proposed designated representative (Rule 20(1) above), however they are clear in Rule 20(9) that it is the Division that must take steps prior to designating a person as a representative. It would thus be impossible for an officer to do so, and as such, the rules do not, in and of themselves, oblige a referring officer to designate a representative for a minor or other claimant at an eligibility interview. In short, as the court observed in Stumf v. Canada, Section 167(2) of IRPA “imposes on the Board an obligation to designate a representative for any refugee claimant who meets the statutory criteria, and that the obligation arises at the earliest point at which the Board becomes aware of those facts. [emphasis added]”.[38]

Rule 20(10) - Responsibilities of the representativeEdit

Responsibilities of representative
(10) The responsibilities of a designated representative include
(a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;
(b) making decisions regarding the claim or application or assisting the represented person in making those decisions;
(c) informing the represented person about the various stages and procedures in the processing of their case;
(d) assisting in gathering evidence to support the represented person’s case and in providing evidence and, if necessary, being a witness at the hearing;
(e) protecting the interests of the represented person and putting forward the best possible case to the Division;
(f) informing and consulting the represented person to the extent possible when making decisions about the case; and
(g) filing and perfecting an appeal to the Refugee Appeal Division, if required.

History of this ruleEdit

The wording of Rule 20(10) is identical to the wording of Rule 15(3) in the previous version of the rules from 2002.[39]

A designated representative is akin to a litigation guardianEdit

In A.N. v. Canada, the court described a minor’s designated representative as being "akin to a litigation guardian in the context of civil proceedings." They noted that "The representative must act in the minor’s best interest at all times during the proceedings and must not let any extraneous or outside concerns or interests impair his or her ability to protect the minor’s interests and to put forward to the RPD the best possible case on the minor’s behalf."[40] The Board's guide for designated representatives notes that "a designated representative is not the same as counsel" and that "the Division must appoint a representative even when the minor or the person who is unable to appreciate the nature of the proceedings has legal or other counsel."[19] That said, the Board's public commentary on the analogous Immigration Division Rules states that "where appropriate, a designated representative may act as counsel."[4]

A designated representative does not, however, have the obligation to act as a social worker to attend to all of the represented person's needs. This is notable because such a role is recommended in the UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum:

The guardian or adviser should have the necessary expertise in the field of childcaring, so as to ensure that the interests of the child are safeguarded, and that the child’s legal, social, medical and psychological needs are appropriately covered during the refugee status determination procedures and until a durable solution for the child has been identified and implemented. To this end, the guardian or adviser would act as a link between the child and existing specialist agencies/individuals who would provide the continuum of care required by the child.[41]

While it is still incumbent upon the Canadian state to ensure that the above needs of a child are attended to, this is outside of the scope of the responsibilities of a designated representative as appointed by the Board.

Remuneration for independent designated representativesEdit

For an RPD hearing which is concluded on its merits, an independent designated representative is paid $550. Where there are interlocutory or other preliminary proceedings attended by the DR, they will receive an additional $100 per attendance.[42]

Even once a designated representative has been appointed, the claimant will often continue to have a role in the claim processEdit

As the court noted in A.N. v. Canada, "The designated representative is not the minor, nor vice versa."[40] The significance of this is that even where represented by a designated representative, the procedural interests of the claimant themselves do not become irrelevant. This has been reflected in proceedings in a number of ways, including:

  • Using (a) language the claimant understands: The court commented approvingly on a panel's decision to continue proceedings in the language that the claimant spoke, even where a representative was designated for them and the representative, counsel, and the panel would have otherwise been able to proceed in English: "The Board Member ensured that the applicant [the claimant in the proceeding] remained involved in the events by rejecting her counsel’s suggestion that the proceedings be conducted in English, or that she should not sit beside her son [who served as the designated representative] while he testified. The applicant understood that she was there to advise her son as he testified. During the course of the testimony when her son could not answer a question, she provided the answer indicating she was engaged and understanding the proceedings."[43]
  • Allowing the claimant to remain in the hearing room: The person who has a representative designated for them continues to have a right to observe and, where possible, understand the hearing. Even where the claimant will not be able to understand the hearing room, a Member may err where they refuse to allow the claimant to remain in the room during the hearing. For example, in one case where a Board Member refused to proceed with the hearing with children present, the Board found that in so doing (and in the way that they went about making the decision not to proceed) they had breached the Code of Conduct for Members of the IRB.[44]
  • Allowing the claimant to testify, where appropriate: The person who has a representative designated for them may still testify, as appropriate. The Federal Court commented approvingly on this practice in one case: "The [claimant] understood that she was there to advise her [designated representative] as he testified. During the course of the testimony when her [DR] could not answer a question, [the claimant] provided the answer indicating she was engaged and understanding the proceedings."[43] This also reflects a children's rights approach. This Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory, per s. 3 of the IRPA; the Convention on the Rights of the Child provides that children have a right to be heard, should be allowed to express their views in all matters affecting them, and should be given the opportunity to participate in any decision about their lives (Article 12 CRC), subject to the principle of evolving capacities (Article 5 CRC).[45]

The role of the designated representative can be limited to some of the above tasksEdit

In Ryvina v. Canada, the claimant's son was appointed as her designated representative at the hearing after the claimant had trouble testifying. The Federal Court concluded that the designated representative took on some of the above roles, but that it was not necessary for the hearing to be adjouned for the designated representative to repeat all the tasks specified in Rule 20(10) de novo:

In this matter, where the applicant was represented by counsel, the issue only arose once the applicant attempted to testify and was experiencing difficulty in doing so. Accordingly, most of the matters discussed in Rule 20 have no application. This would include the requirements such as deciding whether to retain counsel and instructing counsel [Rule 20(10)(a)], making or assisting in making decisions regarding the claim or application [Rule 20(10)(b)], informing the represented person about the various stages and procedures in the processing of their case [Rule 20(10)(c)], assisting in gathering evidence to support the represented person’s case [Rule 20(10)(d)], informing and consulting the represented person when making decisions about the case [Rule 20(10)(f)], and in filing and perfecting an appeal [Rule 20(10)(g)]. In this particular case, the applicant son’s role as a representative was limited to providing evidence, and if necessary, being a witness at the hearing [Rule 20(10)(d)], and also protecting the interests of the represented person in putting forward the best possible case [Rule 20(10)(e)].[46]

This is consistent with international standards that where special needs become apparent at a later stage in the asylum procedure, states will ensure that the need for special procedural accommodations is addressed without necessarily restarting the procedure.[47]

Rule 20(10)(a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counselEdit

RPD Rule 20(10)(a) provides that the responsibilities of a designated representative include deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel.

  • Principles about whether to retain counsel: The UN Committee on the Rights of the Child has specified that pursuant to the Convention on the Rights of the Child, all children, including those in parental care, should be appointed a legal representative to provide representation at all stages in the proceedings and with whom they can communicate freely.[48] The recent Global Compact for Safe, Orderly and Regular Migration also confirms that migrants should be provided with ‘gender-responsive, child-sensitive, accessible and comprehensive information and legal guidance on their rights and obligations’.[49]
  • Principles about how to instruct counsel: How is a designated representative to decide whether to simply instruct counsel based on what they think is in the represented person's best interests or whether they should instead assist the represented person in instruction counsel? When considering ambiguous terms about the obligations of the designated representative, such as "instructing counsel or assisting the represented person in instructing counsel", s. 3(3)(f) of the Act may properly be considered. This provision provides that "This Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory." Relevant international human rights instruments include the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. Article 12 of the Convention on the Rights of the Child recognizes the right of the child to express his or her views freely and for those views to be given due weight according to the age and maturity of the child.[50] Similarly, Art. 3(a) of the Convention on the Rights of Persons with Disabilities emphasizes the right to autonomy.[51] Accordingly, to the extent possible, this provision should be interpreted in a way where the designated representative respects this right, including by soliciting the child's views and giving them due weight.

Rule 20(10)(b) making decisions regarding the claim or application or assisting the represented person in making those decisionsEdit

RPD Rule 20(10)(b) provides that the responsibilities of a designated representative include making decisions regarding the claim or application or assisting the represented person in making those decisions. This provision should be interpreted in light of Article 12 of the Convention on the Rights of Persons with Disabilities which provides that such persons have a right to legal capacity and supported rather than substitute decision-making.[52]

Rule 20(10)(c) informing the represented person about the various stages and procedures in the processing of their caseEdit

Rule 20(10)(c) provides that the responsibilities of a designated representative include informing the represented person about the various stages and procedures in the processing of their case. In the case of children, this obligation tracks a child’s right to information in Article 17 of the UN Convention on the Rights of the Child, which specifies that "states ... shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health".[5] Furthermore, the right to information has close connections with the right to be heard in Article 12 of the Convention on the Rights of the Child, which recognizes the right of the child to express his or her views freely and for those views to be given due weight according to the age and maturity of the child.[50] The UN Committee on the Rights of the Child states that the right to information is essential in this regard, "because it is the precondition of the child’s clarified decisions" and that "children should be provided with full accessible, diversity-sensitive and age-appropriate information about their right to express their views feely".[53]

Rule 20(10)(d) assisting in gathering evidence to support the represented person’s case and in providing evidence and, if necessary, being a witness at the hearingEdit

Where a representative is appointed late in the process, whether it will be necessary to adjourn the case or not in such circumstances will be dependent on the facts at issue. For example, in Singh v. Canada the court concluded that the failure to designate a representative for the minor claimant until just before the hearing did not vitiate the decision in question for the following reasons:

In the case at bar, I do not think the RPD's decision is vitiated, in view of the following facts:

-  The applicant was 17 years and 10 months at the time of the hearing, 16 years and 5 months at the time he completed his PIF, and he was at all times able to understand the proceedings that were in progress;

-  A representative was assigned to him before the hearing and he was allowed to meet with a social worker on the eve of the hearing;

-  The improbabilities in his story are too numerous and significant to conclude that the RPD decision is vitiated because he had not yet reached the age of 18.[54]

Rule 20(10)(e) protecting the interests of the represented person and putting forward the best possible case to the DivisionEdit

The UNHCR states that the best interests of the child must be a primary consideration in deciding whether and how to have a child testify.[55] At the core of the best interests principle is the notion that children require protection and guidance because of their lack of maturity, experience or understanding.[56] The principle is most directly expressed in Article 3(1) of the Convention on the Rights of the Child, which states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.[5]

The best interests principle is an interpretative principle and procedural guarantee, as well as a substantive right.[57]

Rule 20(10)(f) informing and consulting the represented person to the extent possible when making decisions about the caseEdit

As the legal philosopher Patricia Mindus states, frequent exposure to rules perceived to be unintelligible, arbitrary or simply unwarranted results in signs of distress and mistrust of organizations and institutional staff in authoritative positions.[58] The designated representative exists to help guard against this during the refugee claim process to the extent possible

The Board's public commentary on the analogous Immigration Division Rules states that "As much as possible, the designated representative should inform and consult the minor or incompetent person when making decisions about the case. [emphasis added]".[4] Similarly, the Board's guide for designated representatives states that "your role as a designated representative may vary" depending on the person’s capacity to participate in the decision-making process:

The designated representative should inform and consult the minor or the person who is unable to appreciate the nature of the proceedings when making decisions about their case. However, the role of the designated representative may vary, depending on the level of understanding of the minor or the person who is unable to appreciate the nature of the proceedings. Minors will vary in their ability to participate in making decisions, depending on the type of decision that has to be made, their age and their maturity. Persons who are unable to appreciate the nature of the proceedings may also have some ability to participate in making decisions, depending on the type of decision that has to be made and the nature and severity of their impairment.[19]

In the case of children, this will involve communicating in a language and in a manner they understand. The relevant UNHCR guidelines provide that children need to be informed of the decision in their case in person, in the presence of their guardian, legal representative, and/or other support person, in a supportive and non-threatening environment. If the decision is negative, particular care will need to be taken in delivering the message to the child and explaining what next steps may be taken in order to avoid or reduce psychological stress or harm.[59]

Rule 20(10)(g) filing and perfecting an appeal to the Refugee Appeal Division, if requiredEdit

RPD Rule 20(10)(g) provides that the responsibilities of a designated representative include filing and perfecting an appeal to the Refugee Appeal Division, if required.

ReferencesEdit

  1. United Nations High Commissioner for Refugees, Global trends: Forced Displacement in 2018, <https://www.unhcr.org/globaltrends2018/> (Accessed 15 March 2020).
  2. Thomas Waldock, A Question of Commitment: The Status of Children in Canada, second edition, Wilfrid Laurier Univ. Press, Apr. 9, 2020, <https://books.google.ca/books?id=q1raDwAAQBAJ&lpg=PT108&ots=Va_a3dRnFN&lr&pg=PT111#v=onepage&q&f=true> (Accessed April 11, 2020), Chapter 7: Assessing the Rights and Realities of War-Affected Refugee Children in Canada, written by Myriam Denov and Maya Fennig.
  3. UNHCR, Global Trends, Forced Displacement 2016, 19 June 2017, <http://www.unhcr.org/en-my/statistics/unhcrstats/5943e8a34/global-trends-forced-displacement-2016.html>, at 47.
  4. a b c d e f g Immigration and Refugee Board of Canada, Commentaries to the Immigration Division Rules, Date modified listed on webpage: 2018-06-23, <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/CommentIdSi.aspx> (Accessed January 27, 2020).
  5. a b c UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html [accessed 28 June 2020]
  6. Ruth Brittle, A Hostile Environment for Children? The Rights and Best Interests of the Refugee Child in the United Kingdom’s Asylum Law, Human Rights Law Review, Published: 26 January 2020, ngz028, doi:10.1093/hrlr/ngz028
  7. Sharma c. Canada (Ministre de la Citoyenneté et de l’Immigration), [2008] CF 908.
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  9. Cleveland, J. (2008). The Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada: A Critical Overview. Refuge: Canada’s Journal on Refugees, 25(2), 119-131. Retrieved from https://refuge.journals.yorku.ca/index.php/refuge/article/view/26035, page 121.
  10. Stumf v Canada (Minister of Citizenship and Immigration), 2002 FCA 148, para. 6.
  11. a b c Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
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  17. Jorda v. Canada (Public Safety and Emergency Preparedness), 2008 CanLII 77324 (CA IRB), para. 8.
  18. Jorda v. Canada (Public Safety and Emergency Preparedness), 2008 CanLII 77324 (CA IRB), para. 20.
  19. a b c Immigration and Refugee Board of Canada, Designated Representative's Guide, Revised December 2012 <https://irb-cisr.gc.ca/en/designated-representant/Pages/index.aspx> (Accessed January 26, 2020).
  20. Jorda v. Canada (Public Safety and Emergency Preparedness), 2008 CanLII 77324 (CA IRB), para. 14.
  21. Joint Statement by the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), and the CRPD Committee, ‘Addressing Disabilities in Large-Scale Movements of Refugees and Migrants’ (12 April 2017), page 2.
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  24. Espinoza v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 385, [1999] 3 F.C. 73 (F.C.T.D.).
  25. Comm. on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, ¶¶ 33, U.N. Doc. CRC/GC/2005/6 (Sept. 1, 2005) (requiring guardians and all officials working with unaccompanied migrant children to have specialized training for their particular role and containing common elements such as cultural sensitivity, interview techniques and knowledge of origin country).
  26. Jorda v. Canada (Public Safety and Emergency Preparedness), 2008 CanLII 77324 (CA IRB), para. 21.
  27. Black v. Canada (Citizenship and Immigration), 2009 FC 703 (CanLII), para. 35.
  28. a b Black v. Canada (Citizenship and Immigration), 2009 FC 703 (CanLII), para. 58.
  29. Jorda v. Canada (Public Safety and Emergency Preparedness), 2008 CanLII 77324 (CA IRB), paras. 5, 22.
  30. a b X (Re), 2017 CanLII 149059 (CA IRB), <http://canlii.ca/t/j2dn5>, retrieved on 2020-09-06.
  31. Ryvina v. Canada (Citizenship and Immigration), 2015 FC 764 (CanLII), para. 32.
  32. M.(F.A.) v. Canada (Minister of Citizenship & Immigration), [2013] F.C.J. No. 604, 2013 FC 574 (F.C.), para. 16.
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  36. a b Plancher v. Canada (Citizenship and Immigration), 2007 FC 1283 (CanLII), para. 14.
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  38. Stumf v. Canada, 2002 FCA 148, para. 6 .
  39. Refugee Protection Division Rules, SOR/2002-228.
  40. a b A.N. v. Canada (Citizenship and Immigration), 2016 FC 549 (CanLII), para. 28.
  41. UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, February 1997, <https://www.unhcr.org/publications/legal/3d4f91cf4/guidelines-policies-procedures-dealing-unaccompanied-children-seeking-asylum.html> (Accessed December 13, 2020), at 5.7.
  42. Immigration and Refugee Board of Canada, Revised Remuneration Schedule for Designated Representatives, April 1, 2015, <https://irb-cisr.gc.ca/en/news/2016/Pages/DesRepRem.aspx> (Accessed January 26, 2020).
  43. a b Ryvina v. Canada (Citizenship and Immigration), 2015 FC 764 (CanLII), para. 34.
  44. Immigration and Refugee Board of Canada, Report to the House of Commons Standing Committee on Citizenship and Immigration (CIMM): Status of Complaints against IRB Members Brought in the First Year under the New Procedures, Date modified: 2019-11-28, <https://irb-cisr.gc.ca/en/transparency/member-conduct/Pages/report-cimm-complaint-status.aspx>.
  45. Convention on the Rights of the Child 1989, 1577 UNTS 3.
  46. Ryvina v. Canada (Citizenship and Immigration), 2015 FC 764 (CanLII), para. 37.
  47. Conte, C. (2020). "Disability in EU asylum law". In Research Handbook on EU Disability Law. Cheltenham, UK: Edward Elgar Publishing. doi: https://doi.org/10.4337/9781788976428.00028 at page 372.
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  49. Global Compact for Safe, Orderly and Regular Migration, intergovernmentally negotiated and agreed outcome, 13 July 2018.
  50. a b Committee on the Rights of the Child, General Comment No 5: General Measures of Implementation of the Convention on the Rights of the Child (arts 4,42 and 44, para 6), 27 November 2003, at para 12.
  51. Motz, S. (2020). The Refugee Status of Persons with Disabilities. Leiden, The Netherlands: Brill | Nijhoff. doi: https://doi-org.peacepalace.idm.oclc.org/10.1163/9789004427303 at page 9.
  52. Motz, S. (2020). The Refugee Status of Persons with Disabilities. Leiden, The Netherlands: Brill | Nijhoff. doi: https://doi-org.peacepalace.idm.oclc.org/10.1163/9789004427303 at page 10.
  53. Rap, S..E. (2020). The Right to Information of (Un)Accompanied Refugee Children, The International Journal of Children's Rights, 28(2), 322-351. doi: https://doi.org/10.1163/15718182-02802003, at page 326.
  54. Singh v Canada (Minister of Citizenship and Immigration), 2006 FC 134, para. 34.
  55. UN High Commissioner for Refugees (UNHCR), Procedural Standards for Refugee Status Determination Under UNHCR's Mandate, 26 August 2020, available at: https://www.refworld.org/docid/5e870b254.html [accessed 5 September 2020], page 15.
  56. Woolf, ‘Coming of Age? The Principle of ‘the Best Interests of the Child’ (2003) 2 European Human Rights Law Review 205 at 208–9.
  57. Committee on the Rights of the Child, General Comment No 14.
  58. Mindus, P. (2020). Towards a Theory of Arbitrary Law-making in Migration Policy. Etikk I Praksis - Nordic Journal of Applied Ethics, 14(2), 9-33. https://doi.org/10.5324.eip.v14i2.3712 at page 16.
  59. UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009, HCR/GIP/09/08, available at: https://www.refworld.org/docid/4b2f4f6d2.html [accessed 29 June 2020].