Entering into a dialogue on designated representatives

  • June 29, 2016

Serve and return, thrust and parry, call and response: the basis of any productive exchange is the active participation of two or more parties.

The CBA’s Immigration Section has entered into a constructive dialogue with government agencies on the topic of designated representatives for vulnerable immigrants and refugees – that is, minors, as well as people unable to understand the legal process they’re in due to their mental state or capacity.

In December, the Section sent the the Immigration and Refugee Board of Canada, Immigration and Refugees and Citizenship Canada, and the Canada Border Services Agency a document titled Designated Representatives in Immigration and Refugee Matters: Using them to the Fullest Potential, which made 29 recommendations for the training, appointment, compensation and best uses of designated representatives.

The Section argued, among others, that the role of DR be broadened to address all the needs of those with capacity issues; that the principle of “the best interests of the child” be given primacy, and that parents should not be the presumptive DR; that vulnerable claimants should be appointed a DR from the moment they arrive, and that that person should stay with them through the end of the IRB process; and that the IRB should establish a roster of culturally diverse professionals who are willing to act as DRs.

In May, Mario Dion, Chair of the IRB, provided a detailed response to the submission, grouping them by recommendations the IRB agrees with and already does; recommendations the IRB partially agrees with; recommendations it disagrees with; and recommendations that are outside the IRB’s jurisdiction.

On the whole, the IRB agreed with more of the Section’s recommendations than it disagreed with. While it disagreed with the Section’s “expanded” definition of vulnerable person, saying it would continue to follow the one provided by Chairperson Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB, it agrees with or already complies with several areas mentioned in the CBA document, including best interests of the child, appointment and availability of DRs, and training and monitoring of the representatives.

Areas of disagreement were the appointment, selection and performance review of DRs; the creation of new IRB guidelines to facilitate DRs acting as witnesses and disclosure by the Minister; and payment of DRs on a prorated basis.

For example, the IRB says that the Canadian Border Security Agency can hold someone for 48 hours before referring them to the Immigration Division for a detention review – “as such, it is not possible for the (Immigration Division) to appoint the DR before the case is referred to the ID.”

In terms of ceasing the practice of making the parent the presumptive DR for accompanied minors, the IRB says when there is information available about the possibility of abduction, abuse or exploitation, this information will be considered in determining the appropriate DR, but where there is no evidence, “the presumptive appointment of a custodial parent as the DR for their child respects Article 5 of the UN Convention on the Rights of the Child.”

However, the Chair also stated the IRB is “open to receiving further submissions from the CBA on the issue of appointment of parents as the DR of minors.”

In June, the Section wrote back to the IRB, responding to the board’s responses. Those two letters will also form the basis of ongoing dialogue between branch sections and regional IRB committees. We hope to bring you more on those discussions in the future. 

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