Minimum experience requirements for refugee and immigration general services

Minimum experience reuirements for immigration and refugee law

1. Law Society Member In Good Standing

Lawyers providing Refugee and Immigration: General legal aid services must be licensees in good standing with the Law Society of Ontario.

2. Demonstrated competence in refugee/immigration law

To be eligibile to provide Refugee and Immigration: General legal aid services, a lawyer must demonstrate competence in refugee/immigration law. There are several ways to demonstrate competence.

1. Recent experience

   While not determinative, having significant recent experience in refugee law may be an indicator of competence. A lawyer will be deemed to have significant recent experience if, in the past two years, s/he has dedicated a minimum of 25% of his/her practice to refugee/immigration law, and has completed 10 or more of any combination of the following:

   • Basis of Claim Forms
   • Refugee Protection Division hearings
   • Pre-Removal Risk Assessment submissions
   • Danger Opinion submissions
   • Refugee Appeal Division appeals
   • Perfected Federal Court Applications for Leave and for Judicial Review of RPD, RAD, PRRA or Danger Opinion decisions
   • Federal Court motions to stay removal
   • Federal Court judicial review hearings in respect of RPD, RAD, PRRA or Danger Opinion decisions
   • Appeals before the Federal Court of Appeal in respect of refugee/immigration law matters

2. Historical experience

   Likewise relevant but not determinative of competence is significant historical experience in refugee/immigration law. A lawyer will be deemed to have significant historical experience in refugee/immigration law if, during at least five of the past seven years, s/he has dedicated a minimum of 25% of his/her practice to refugee/immigration law, and during that time has completed 25 or more of any combination of the following:

   • Personal Information Forms or Basis of Claim Forms
   • Refugee Protection Division hearings
   • Pre-Removal Risk Assessment submissions
   • Danger Opinion submissions
   • Refugee Appeal Division appeals
   • Perfected Federal Court Applications for Leave and for Judicial Review of RPD, RAD, PRRA or Danger Opinion decisions
   • Federal Court motions to stay removal
   • Federal Court judicial review hearings in respect of RPD, RAD, PRRA or Danger Opinion decisions
   • Appeals before the Federal Court of Appeal in respect of refugee/immigration law matters

3. Supporting documents

All applicants, regardless of experience, will be required to provide to LAO:

• Copies of two recently completed Basis of Claim Forms filed with the IRB, along with copies of the index of disclosure and decisions and reasons in those cases; or
• Copies of the written submissions and index of evidence filed in respect of two recent Pre-Removal Risk Assessment applications or Danger Opinions, with decisions where applicable; or
• Copies of the written submissions and index of two recent perfected RAD appeals, with decisions if applicable; or
• Copies of the memoranda of argument and index of two recent perfected Federal Court applications for leave for judicial review, and decisions if applicable.

All applicants are requested to provide the names and telephone numbers of two experienced refugee lawyers (preferably lawyers on LAO’s roster) who are familiar with the applicant’s work and are willing to act as references. This requirement can be waived if the applicant is reasonably unable to provide such references.

4. LAO’s Discretion

LAO retains the discretion to refuse to approve an application to provide immigration and refugee legal aid services, even if the applying lawyer meets or exceeds the recent and/or historical experience threshold, if the lawyer fails to demonstrate to LAO’s reasonable satisfaction that s/he is competent in refugee/immigration law or if, in LAO’s opinion, it is in the public interest to do so.

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Mandatory professional development

Lawyers authorized to provide Refugee and Immigration: General legal aid services are required to complete a minimum of three hours of continuing professional development (CPD) each calendar year in refugee law-related Eligible Educational Activities.

LAO may deem that a lawyer has met these requirements if the lawyer has professional development experience that exceeds or is equivalent to the Refugee and Immigration: General professional development standard. This experience could include:

• Teaching or publishing materials on refugee law;
• Acting as a mentor in a refugee law mentoring program established or approved by LAO;
• Having recognized and substantial recent experience in refugee law; or,
• Any other professional development experience that LAO determines appropriate.

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Quality service expectations

Lawyers members are required to comply with the following “Refugee and Immigration: Quality Service Expectations:”

Legal Aid Ontario (LAO) expects lawyers to act professionally, competently, and effectively, when representing legally aided clients.

The Law Society of Ontario’s Rules of Professional Conduct (RPC) as they relate to lawyers reflect LAO’s expectations regarding lawyers’ duties to both the courts and to clients.

In particular:

Rule 2 “Relationship to Clients”

• Competence
• Quality of Service
• Confidentiality
• Avoidance of Conflicts of Interest,
• Withdrawal from Representation; and

Rule 4 “Relationship to the Administration of Justice”

The duty to act competently requires ongoing education and reflection upon one’s work.

1. LAO expects every lawyer authorized to provide Refugee and Immigration: General legal aid services to have knowledge of and, acting in the client’s best interests, competently apply:

   • The Immigration and Refugee Protection Act (IRPA), and other relevant legislation/law
   • The Convention relating to the Status of Refugees and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
   • The Rules of Professional Conduct (Law Society of Upper Canada)
   • The IRB Rules of Practice and Chairperson’s Guidelines
   • Significant jurisprudence
   • UNHCR Handbook on Procedures and Criteria for Determining Refugee Status
   • Canada Evidence Act
   • Interpretation Act

   And to provide quality representation considering:

   • A reasonable client of modest means
   • Specific issues relating to vulnerable clients including survivors of torture
   • Privilege
   • Confidentiality
   • Respect for the clients instructions
   • Effective communication with clients using plain language
   • Cultural and linguistic barriers
   • Essential advocacy and tribunal skills including but not limited to: review of the refugee claim, research, advising the client, careful preparation of documentation, strategizing, evidence gathering and disclosure, preparation for the hearing, preparation of the client, effective advocacy within the bounds of professional obligations.

2. LAO expects every lawyer authorized to provide Refugee and Immigration: General legal aid services to represent his/her clients effectively and ethically considering the following:

   • Knowing each of the elements of the claims
   • Good familiarity with all of the evidence
   • Knowledge of hearing procedures
   • Effective interviewing skills
   • Careful and timely review of disclosure
   • Research on current country conditions
   • Knowledge of current jurisprudence relating to the country and issues raised by the claim

3. Know your limits

   • Accept only those cases for which you have the knowledge and experience to offer quality representation [Rule 2.01 RPC]

4. Adhere to LAO’s “Best Practices Guide” to ensure that clients are provided with high quality legal services.

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Best practices guide

Lawyers are required to comply with the following:

General principles

In providing quality service to clients, the lawyer shall endeavour to communicate with the client in plain language to their understanding and:

• Advance the client’s case
• Provide the client with the information necessary to make informed decisions respecting his or her representation
• Respond promptly to reasonable inquiries from the client
• Make reasonable efforts to accommodate clients with special needs, including those who require interpreters and those with literacy or mental health issues
• Act professionally with civility and decorum
• Avoid unreasonable delays consistent with effective representation in the client’s best interests, and a lawyer’s duty as an officer of the court
• Act reasonably and refrain from pursuing issues that have no real prospect of success and that fail to advance the client’s interests.

In addition, a lawyer should have knowledge of and familiarity with the Immigration and Refugee Protection Act and shall have an understanding of other relevant legislation and resources. See below.

Best Practices – All matters

1. First interview

   • The lawyer or person acting under her or his direct supervision should interview the client at the first reasonable opportunity.

   • At this first interview and all subsequent meetings, the lawyer and anyone acting under her or his supervision must be alert to potential linguistic, cultural or mental health issues that could affect the giving of instructions and/or the preparation or substance of the case. The lawyer member must make reasonable accommodations or take reasonable steps, such as providing an interpreter, or providing appropriate referrals to medical or mental health practitioners and/or other relevant community resources.

   • The lawyer should ensure that the client understands generally the test to be met to be accepted as a Convention refugee or person in need of protection in RPD and PRRA cases, or on humanitarian and compassionate grounds in H&C cases, as well as the procedures, role and powers of the relevant tribunal or decision maker.

   • The lawyer must at all times remain alert to potential and actual conflicts of interest that would result in an inability to represent the client, while making best efforts to protect the client’s interests.

   • As soon as possible after the first meeting, when necessary and appropriate, and taking into account disclosure deadlines, the lawyer should seek relevant disclosure from the IRB, CIC, and/or CBSA, including but not limited to:

     • all oral and written statements by the client, and the details of the circumstances under which the statements were made;
     • all documents, images and recordings pertaining to the claim;
     • all reports of physical or mental harm.

2. Preparation and finalization of the forms (BOC, PRRA, H&C)

   • The lawyer or person acting under her or his supervision should be aware of general country conditions in the country of origin of the client and, where appropriate, conduct basic country condition research before finalizing the BOC, PRRA or H&C forms, as applicable.

   • The lawyer must personally interview a client about the contents of the forms before having a client sign it.

   • The lawyer must ensure that a client is satisfied that the forms are complete, correct in every detail, and clearly understood by the client before requesting he/she sign it.

   • The lawyer must give his/her client a complete copy of the signed forms as submitted to the tribunal.

   • The lawyer must discuss with the client the evidentiary requirements for the case, and provide appropriate guidance regarding the collection of such evidence, as well as timelines

3. Developing and supporting the case

   • Prior to a hearing or the filing of submissions, a lawyer should develop a sensible and coherent theory of the case.

   • A lawyer should, where appropriate, obtain objective evidence to support the case, including relevant country of origin information, and advise the client on gathering relevant personal documents.

   • Documents which are not in English or French must be translated before they can be sent to the tribunal. LAO will pay for a limited amount of translation, including identity or personal documents. If a client has more documents that require translation, the lawyer should contact LAO for authorization prior to incurring the cost.

   • In those matters where there is no hearing (e.g. H&C applications, danger opinions, most PRRA applications), a lawyer should develop clear and coherent written submissions in support of the application, addressing the relevant legal, factual and evidentiary issues raised by the application.

   • Evidence and written submissions should be disclosed in a timely manner.

   • The lawyer should keep the client apprised of any significant developments in the case.

   • The lawyer should consider disclosing additional updated submissions and evidence in appropriate circumstances.

Guide – RPD matters

1. Prior to the hearing

   • The lawyer must review any disclosure from the IRB, CBSA or CIC prior to the hearing, and discuss and make best efforts to resolve with the client any contradictions, omissions or other issues arising.

   • The lawyer must be/become familiar with the documentation contained in the National Documentation Package(s) and its relevance to the client’s case, and should conduct independent country condition research to ensure that reasonably available, relevant and reliable objective evidence supporting the claim is placed before the Board before the deadline for disclosure.

   • The lawyer must meet with the client prior to the hearing in order to fully prepare the client for giving evidence.

   • The lawyer must prepare for the hearing, including by developing a coherent and sensible theory of the case, preparing to make, or respond to, any reasonable preliminary motions or objections, and must prepare to examine the claimant/witnesses and make any oral submissions that will be required.

2. At the hearing

   • The lawyer must represent the client at the hearing. If the lawyer is relying on another person to represent the client at the hearing, s/he must obtain the client’s consent in advance, and the person providing the representation must be authorized to provide immigration and refugee legal aid services.

   • At the hearing, the lawyer is expected to represent the client’s interests fearlessly and competently, including by bringing relevant motions, raising objections where necessary or appropriate, fully questioning witnesses, and providing fulsome closing submissions addressing all the “live issues” at stake.

3. After the hearing

   • The lawyer is expected to, where requested by the RPD and having not done so orally at the hearing, provide post-hearing submissions in writing.

   • The lawyer should remain generally aware of conditions in the country of origin of the client following the hearing and to provide post hearing evidence to the RPD where appropriate.

   • The lawyer should advise the client of the outcome of the hearing, explaining it where necessary, and should advise the client of the availability of further procedures including applications for permanent residence, appeals and judicial reviews.

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Appendix

Appendix A: Quality service expectations

Legal Aid Ontario (LAO) expects lawyers to act professionally, competently, and effectively, when representing legally aided clients.

The Law Society of Ontario’s Rules of Professional Conduct (RPC) as they relate to lawyers reflect LAO’s expectations regarding lawyers’ duties to both the courts and to clients.

In particular:

Rule 2 “Relationship to Clients”

• Competence
• Quality of Service
• Confidentiality
• Avoidance of Conflicts of Interest,
• Withdrawal from Representation; and

Rule 4 “Relationship to the Administration of Justice”

The duty to act competently requires ongoing education and reflection upon one’s work.

1. LAO expects every lawyer authorized to provide Refugee and Immigration: General legal aid services to have knowledge of and, acting in the client’s best interests, competently apply:

   • The Immigration and Refugee Protection Act (IRPA), and other relevant legislation/law
   • The Convention relating to the Status of Refugees and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
   • The Rules of Professional Conduct (Law Society of Upper Canada)
   • The IRB Rules of Practice and Chairperson’s Guidelines
   • Significant jurisprudence
   • UNHCR Handbook on Procedures and Criteria for Determining Refugee Status
   • Canada Evidence Act
   • Interpretation Act

   And to provide quality representation considering:

   • A reasonable client of modest means
   • Specific issues relating to vulnerable clients including survivors of torture
   • Privilege
   • Confidentiality
   • Respect for the clients instructions
   • Effective communication with clients using plain language
   • Cultural and linguistic barriers
   • Essential advocacy and tribunal skills including but not limited to: review of the refugee claim, research, advising the client, careful preparation of the Basis of Claim form and other documentation, strategizing, evidence gathering and disclosure, preparation for the hearing, preparation of the client, effective advocacy within the bounds of professional obligations.

2. LAO expects every lawyer authorized to provde Refugee and Immigration: General legal aid services to represent his/her clients effectively and ethically considering the following:

   • Knowing each of the elements of the claims
   • Good familiarity with all of the evidence
   • Knowledge of hearing procedures
   • Effective interviewing skills
   • Careful and timely review of disclosure
   • Research on current country conditions
   • Knowledge of current jurisprudence relating to the country and issues raised by the claim

3. Know your limits

   • Accept only those cases for which you have the knowledge and experience to offer quality representation [Rule 2.01

4. Adhere to LAO’s ‘Best Practices Guide’ to ensure that clients are provided with high quality legal services.

Appendix B: Best practices guide

1. General

In providing quality service to clients, the lawyer shall endeavour to communicate with the client in plain language to their understanding and:

• Advance the client’s case
• Provide the client with the information necessary to make informed decisions respecting his or her representation
• Respond promptly to reasonable inquiries from the client
• Make reasonable efforts to accommodate clients with special needs, including those who require interpreters and those with literacy or mental health issues
• Act professionally with civility and decorum
• Avoid unreasonable delays consistent with effective representation in the client’s best interests, and a lawyer’s duty as an officer of the court
• Act reasonably and refrain from pursuing issues that have no real prospect of success and that fail to advance the client’s interests.

2. Knowledge of relevant refugee legislation & resources

The lawyer should have knowledge of and familiarity with the Immigration and Refugee Protection Act and shall have an understanding of other relevant legislation and resources. See Section 6.

3. Best practices

All matters

• First interview

  • The lawyer or person acting under her or his direct supervision should interview the client at the first reasonable opportunity.
  • At this first interview and all subsequent meetings, the panel member and anyone acting under her or his supervision should be alert to potential linguistic, cultural or mental health issues that could affect the giving of instructions and/or the preparation or substance of the case. The lawyer should make reasonable accommodations or take reasonable steps, such as providing an interpreter, or providing appropriate referrals to medical or mental health practitioners and/or other relevant community resources.
  • The lawyer should ensure that the client understands generally the test to be met to be accepted as a Convention refugee or person in need of protection in RPD and PRRA cases, or on humanitarian and compassionate grounds in H&C cases, as well as the procedures, role and powers of the relevant tribunal or decision maker.
  • The lawyer must at all times remain alert to potential and actual conflicts of interest that would result in an inability to represent the client.
  • As soon as possible after the first meeting, the lawyer should seek relevant disclosure from the IRB, CIC, and/or CBSA, including but not limited to:
    • all oral and written statements by the client, and the details of the circumstances under which the statements were made;
    • all documents, images and recordings pertaining to the claim;
    • all reports of physical or mental harm.

• Preparation and finalization of the forms (BOC, PRRA, H&C)

  • The lawyer or person acting under her or his supervision should be aware of general country conditions in the country of origin of the client and, where appropriate, conduct basic country condition research before finalizing the BOC, PRRA or H&C forms, as applicable.
  • The lawyer must personally interview a client about the contents of the forms before having a client sign it.
  • The lawyer must ensure that a client is satisfied that the forms are complete, correct in every detail, and clearly understood by the client before requesting he/she sign it.
  • The lawyer must give his/her client a complete copy of the signed forms as submitted to the tribunal.
  • The lawyer must discuss with the client the evidentiary requirements for the case, and provide appropriate guidance regarding the collection of such evidence, as well as timelines

• Developing and supporting the case

  • Prior to a hearing or the filing of submissions, the lawyer should develop a sensible and coherent theory of the case.
  • A lawyer should, where appropriate, obtain objective evidence to support the case, including relevant country of origin information, and advise the client on gathering relevant personal documents.
  • Documents which are not in English or French must be translated before they can be sent to the tribunal. LAO will pay for a limited amount of translation, including identity or personal documents. If a client has more documents that require translation, the lawyer should contact LAO for authorization prior to incurring the cost.
  • In those matters where there is no hearing (e.g. H&C applications, danger opinions, most PRRA applications), the lawyer should develop clear and coherent written submissions in support of the application, addressing the relevant legal, factual and evidentiary issues raised by the application.
  • Evidence and written submissions should be disclosed in a timely manner.
  • The lawyer should keep the client apprised of any significant developments in the case.
  • The lawyer should consider disclosing additional updated submissions and evidence in appropriate circumstances.

RPD matters

1. Prior to the hearing

   • The lawyer must review any disclosure from the IRB, CBSA or CIC prior to the hearing, and discuss and make best efforts to resolve with the client any contradictions, omissions or other issues arising.
   • The lawyer must be/become familiar with the documentation contained in the National Documentation Package(s) and its relevance to the client’s case, and should conduct independent country condition research to ensure that reasonably available, relevant and reliable objective evidence supporting the claim is placed before the Board before the deadline for disclosure.
   • The lawyer must meet with the client prior to the hearing in order to fully prepare the client for giving evidence.
   • The lawyer must prepare for the hearing, including by developing a coherent and sensible theory of the case, preparing to make, or respond to, any reasonable preliminary motions or objections, and must prepare to examine the claimant/witnesses and make any oral submissions that will be required.

2. At the hearing

   • The lawyer must represent the client at the hearing. If a lawyer is relying on another person to represent the client at the hearing, s/he must obtain the client’s consent in advance, and the person providing the representation must be authorized to provide immigration and refugee legal aid services or be otherwise qualified by LAO and the IRB to do so.
   • At the hearing, the lawyer is expected to represent the client’s interests fearlessly and competently, including by bringing relevant motions, raising objections where necessary or appropriate, fully questioning witnesses, and providing fulsome closing submissions addressing all the “live issues” at stake.

3. After the hearing

   • The lawyer is expected to, where requested by the RPD and having not done so orally at the hearing, provide post-hearing submissions in writing.
   • The lawyer should remain generally aware of conditions in the country of origin of the client following the hearing and to provide post hearing evidence to the RPD where appropriate.
   • The lawyer should advise the client of the outcome of the hearing, explaining it where necessary, and should advise the client of the availability of further procedures including applications for permanent residence, appeals and judicial reviews.

4. Relevant legislation and resources

Legislation

• The Immigration and Refugee Protection Act (IRPA) and associated regulations
• The Charter of Rights and Freedoms
• Convention related to the Status of Refugees
• Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment
• Rules of the Refugee Protection Division, Immigration Division and the Immigration Appeal Division
• Criminal Code
• Citizenship Act
• Canada Evidence Act
• Interpretation Act

Other sources

• Significant relevant jurisprudence in the field of refugee, immigration, administrative and constitutional law
• IRB Chairperson’s Guidelines
• Relevant chapters of Citizenship and Immigration Canada’s Operations Manual
• UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees
• Applicable UNHCR Guidelines
• James C. Hathaway. The Law of Refugee Status
• Guy S. Goodwin-Gill, The Refugee in International Law