Faraz and I attended a presentation on "Best Practices" for appearing before the Immigration Division today (June 23, 2016). The focus of the session was to share effective strategies for efficient resolution of admissibility hearings and detention reviews. The presentation was moderated by the Assistant Deputy Chairperson, Alice Tang, and included contributions from Geoff Rempel and Marc Tessler, both current Immigration Division members with the Western Region. The session was specific to Immigration Division proceedings and did not include any information on proceedings before the Refugee Protection Division, the Refugee Appeal Division, or the Immigration Appeal Division.
The session emphasized the importance of communication among the parties (counsel), disclosure, witnesses, submissions alongside of applications under the Rules, and finally, interpretation issues. This was a great opportunity to meet the our counterparts at the CBSA Hearings and Appeals Unit and the Immigration Division members in person - usually as counsel in Calgary and Edmonton, we see the Immigration Division members only via video conference. The video conference experience is, to put it simply, unsatisfactory. The Immigration Division and their video conference rooms in Vancouver are not actually designed for video conferencing. As a result, they are at one end of a room in Vancouver, the screen and camera is at the other end of their room, and of course here in Calgary or Edmonton the participants are at the other end of another room which means that participants are quite far apart from one another, cannot see each other very well. Apparently Edmonton is better but there does appear to be a lag or a noticeable lag in terms of video conferences with Calgary. There is no doubt that intimacy is lost in video conferencing but these are the cards that have been dealt. I do recall and remember with fondness the fact that there was an Immigration Division Member in Calgary, Mr. Paul Kyba, I worked with him at the Immigration Refugee Board or rather, should say that as a RPO was on a different floor but met him regularly and he was an absolute professional and gentleman. I think counsel in Calgary appreciated the fact that he was present in the city and these subsequent issues regarding technology did not arise.
There are always logistical difficulties arising and these only compound the fact that hearings before the Immigration Division take place in truncated time frames. This really is the wild west of litigation and immigration law generally.
The Immigration Division hears many cases and has to render decisions in less than optimal circumstances. It appears clear that resources will never quite meet the demand placed upon them. It is almost axiomatic that the Division (and every Division of the IRB) strives for fair hearings and imparting of natural justice. That being said, efficiency and the specter of efficiency is always present and efficiency at times precludes fairness. Logistics will always be a challenge with decision makers in Vancouver, counsel in a hearing room in Calgary or Edmonton and potentially the person concerned via telephone in an jail elsewhere. Add to that the fact that we may need to add an interpreter to the mix.
One thing that I gleaned from this session is that there appears to be different philosophies in the different cities. It's quite clear that the Immigration Division members are happy with the fact that CBSA hearings officers in Vancouver appear to be open to communication with the person concerned and counsel; it would appear from what we heard that CBSA Counsel were proactive in Vancouver in proposing reasonable alternatives to detention. Unfortunately, that is simply not the case in Calgary and from my off the record discussions subsequent to the best practices session that the situation in Edmonton is even worse. It seems that hearings are far more adversarial and far more likely to require an Immigration Division Member to split the baby as it were. An ID member explicitly stated to CBSA counsel present that they should examine, explore, understand the scope of the discretion afforded to them in their role. Perhaps CBSA counsel in the Prairies don't realize that they can in fact be flexible in terms of alternatives to detention (the amount of cash bond for example).
I think it is very clear that the Immigration Division would like us to talk to each other. In a hearing or a courtroom counsel generally refer to opposing counsel as "my friend" but unfortunately this is sometimes a meaningless platitude and that is unfortunate. It is essential that opposing counsel speak to one another and professionally deal with one another; identify problems and solutions, work towards efficient hearing, perhaps narrow the issues, and even come to a resolution before the Immigration Division member walks in through that door.
Other tidbits: the Immigration Division wants counsel to fax over a signed Use of Representative Form as soon as possible. The Immigration Division was concerned and wants counsel to clarify with the client/person concerned the scope of the retainer or which proceedings we are going to represent them in. It appears that our clients, sometimes unsophisticated, do not know or understand the distinctions between criminal bail, immigration bail/detention, and an appeal at the Immigration Appeal Division or even a refugee hearing. It is very, very important that we explain to our clients the need to update the various divisions that deal with their cases and CBSA as to their addresses. Sometimes clients think that by updating CBSA that the IAD is advised; this is not the case and can lead to tragic consequences particularly where the individual has been granted a stay but then the stay is revoked or cancelled because the individual, while complying with all other terms and conditions, fails to advise the IAD of his or her address and the IAD then moves to reconsider; the individual does not appear and the stay is cancelled, the removal order becomes enforceable and status is lost.
There were a couple of pointers regarding submissions. This has been said before, has been said today, and will be said again. It is important for counsel to acknowledge weaknesses in their case and the strengths of your opponent's case. Avoid repetition. Counsel should know the law and the limits of the Division's jurisdiction. Can the Division give you what you are asking for? It is very important the counsel understand the law, the rules of the Division, and the actual powers and jurisdiction of the Immigration Division. Don't disclose evidence that goes to humanitarian and compassionate factors in a proceeding where the Immigration Division does not have jurisdiction to consider same.
Know what to concede and be clear what are conceding and be careful of course in conceding. Also, there is no one size fits all in terms of the size of the bond or cash bond or performance bond. This last issue perhaps is lost on some CBSA Counsel. When you are afforded the opportunity for a reply this is not an opportunity to restate the initial submissions, this is your chance to address issues arising from CBSA Counsel submissions.When you make an Application to the Division clearly state the decision you want them to make and refer to the appropriate legislation, regulation, and the rules. Where you are seeking a postponement provide alternative dates as stipulated in the rules. Indicate how and when the application was provided to the opposing party.
Member Rempel made some good points regarding disclosure. Obviously, disclosure needs to be provided in advance for the the other party and the Division. He suggested and I am surprised that he had to say it but obviously there is a reason but material that is disclosed should be organized and ordered in a logical fashion. It is counsel's responsibility to be selective and avoid irrelevant or repetitive material or documents. A good rule of thumb as Mr. Rempel noted is that if you are not going to refer to a document in your questioning or submissions then you probably don't need to disclose it.
Other details that appear to escape the attention of some counsel is to consecutively number all pages in the disclosure package and that each included document is identified in a covering table of contents and confirmation that the copy of the disclosure has been disclosed to the other party.
In terms of detention reviews the role of the bonds person is important; read the rules. Apparently counsel are not reading the rules, certainly not referring to the rules but provide the information required by Rule 32 for any witness. Before calling a potential bonds person it is important that counsel shares what they know about that potential bonds person to the Immigration Division.
The session also discussed interpretation. Not all interpreters are created equal. Slowing down sometimes speeds up the hearing. Interpretation is inherently difficult. Advise the board whether you will be utilizing full or standby interpretation. Counsel and the person concerned if testifying should speak in relatively short but complete sentences. Be aware of the pace, volume, and enunciation of your speech. If you're quoting extensively ask to put the text before the interpreter. It's important to tell your client, if he (it's usually a he) needs interpretation to break up his sentences/answers.
Finally, everyone is passionate, particularly counsel for the person concerned. It is however possible to disagree without being disagreeable. I think what the Division was trying to do was encourage and I don't think they want us to sing Kumbaya together in the evening before a fire roasting marshmallows but they do want us to speak to our colleagues at the CBSA and vice versa and attempt to resolve those cases that can be resolved without the need of proceeding with a hearing. We all have a job to do in the hearing room. We need to ensure the best possible outcome and the way that we do that is to prepare, communicate, understand the law and the limitations of the Division, not give false hope to our clients, and work collaboratively despite the fact that this is an adversarial process. I appreciate very much the Division coming out to the regions and meeting the members face to face and look forward to working before this Division in the years to come.