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EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 21, 1996

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[English]

The Chair: Good morning, everyone. Thanks for coming again. This is the Standing Committee on Citizenship and Immigration, and pursuant to Standing Order 108(2), this is a study of the draft agreement between Canada and the United States on refugee claims. We will continue with our witnesses.

On your behalf, I have the pleasure of welcoming Ms Thomson and Mr. Matas, members from the Canadian Bar Association.

Thank you for coming and welcome back. You have ten minutes, and I'll be very strict on the time. Please don't read your brief because we do have a copy of it. Please begin.

Ms Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): The Canadian Bar Association is a national association representing over 34,000 jurists across Canada, including lawyers, notaries, law teachers, students and judges. The brief being presented to you today on the draft refugee agreement is presented on behalf of the national immigration law section of the association. The immigration law section represents over 600 lawyers across Canada who practice in the area of immigration law.

The primary objective of the Canadian Bar Association includes the improvement of law and the administration of justice. It is with that objective in mind that we make our presentation today.

I'm very pleased to introduce David Matas, who will be making the substantive remarks this morning. Mr. Matas is a practitioner of many years in Winnipeg, Manitoba, and is the vice-chair of the national immigration law section.

Mr. David Matas (Vice-Chair, National Immigration Law Section, Canadian Bar Association): Thank you very much.

[Translation]

My comments will be in English, but I will answer your questions in French, if you like.

The Chair: Thank you.

[English]

Mr. Matas: The Canadian Bar Association has done a relatively lengthy brief, as you can see, which opposes the signing of the draft memorandum of agreement for a number of different reasons.

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We believe international human rights obligations are either ignored or violated and refugee protection is weakened. Real refugees will end up being treated in an inhumane manner. The agreement serves no apparent purpose from the government's point of view. The agreement is unworkable, creating administrative and legal problems that did not exist before.

Given the length of our brief and the short time at my disposal this morning, I wish to focus only on this last aspect: the practical unworkability of the agreement. I would invite the committee to read the whole brief, which covers these other points in detail.

First of all, the agreement, we predict, will have a perverse effect, creating refugees in orbit - refugees going from country to country in search of a determination - where before there were no refugees in orbit, where there are none now.

The agreement sets out a series of complex rules about allocation of responsibility for determining claims. Inevitably in individual cases there will be disputes between the two countries about the application of the rules. Individuals will be caught in the middle, waiting for the dispute to be resolved. There will be uncertainty in the fate of refugees.

If you look at the agreement, you'll see there's no dispute resolution mechanism. Right now we do not hear of disputes between Canada and the U.S. about who will decide a refugee claim, but the agreement manufactures such disputes. With the agreement, even if claimants are not physically bounced from country to country, they will remain on hold while allocation disputes are sorted out. Such persons may not be in orbit, but they are on the launching pad waiting for blast-off.

The agreement provides that either party may request consultation with the other party with respect to the general operation of the agreement, but this is not a mechanism to resolve disputes. It just allows for consultation. Moreover, this clause refers to general operation, not to individual cases. But unless there is some form of dispute resolution mechanism, something as basic as preventing refugees in orbit is not assured. That's the first problem.

Secondly, the agreement ignores obstacles to transit, such as detention or even bad weather, that may be beyond the control of the claimant. The basic rule of the agreement is first arrival. There's an exception if you transit within 48 hours by air, or within 10 days if you arrive by land or sea. But if you're actually picked up and detained in the country of first arrival and the 48 hours or 10 days passes, then you're caught. Or if there's simply a blizzard at the airport and your 48 hours passes, you're caught. So the presumed intent of the agreement, which is to give people in transit an opportunity to actually arrive at their destination, is frustrated, because it doesn't say that. That's a second problem.

Thirdly, the agreement creates an incentive to abuse of the Canadian refugee determination system. Again here, the agreement will have a perverse effect. The best deterrent to abuse is a fair, efficient system reaching accurate determinations on refugee claims in a quick manner. The only way there will be no incentive to invoke a refugee determination system just for the sake of being a claimant is to have a procedure that ensures no one is a claimant for very long.

However, the draft agreement lengthens the refugee determination procedure, rather than shortening it, by adding an extra step. Claimants will have to go through an allocation determination before the refugee determination is made. Time will be spent on investigating issues of fact that have nothing to do with whether or not the person is a refugee, such as whether the person was in the U.S. ten days before the person came to Canada or ten days in Canada before the person came to the U.S., or whether the person was outside of Canada for a year or outside of the U.S. for a year, and so on. There's a lot of these time rules, which I won't go through, but obviously there are going to have to be determinations about them.

That's a third problem. It's going to lengthen the system. People are going to have to go through these preliminary procedures before they get to their claim and you're going to create backlogs where there are none now, delays where there are none now and incentives to abuse when there are none now.

Fourth, the agreement adds to the overall cost of the refugee determination system. The supposed bottom line of the agreement is cost saving from preventing double-negative claims - the cost of making two determinations, one in each country, when only one in either country would do - yet right now there are relatively few double-negative determinations.

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The department has not been able to generate any statistics about whether in fact there are any or have been any, or what their numbers are. Just from the information we've been able to collect from talking to people, it seems it happens relatively rarely.

In order to save the money involved in making those few determinations where admittedly there would be a cost saving to make one determination instead of two, the government proposes a huge expenditure of sorting out every person who passes through either country en route to the other, to determine where the person's claim should be allocated. The government proposes a large expenditure in pursuit of a small saving.

Fifth, the agreement is going to create an artificial refugee population movement to Canada. Because claimants get only one shot at protection, it becomes in their interest to choose the best shot. The agreement will attract claimants who might not otherwise come, in order to cut down the overall risk of rejection. In practical terms that means claimants from virtually every country in the world except Cuba who are in need of protection, rather than make their claims in the United States, as they do now, will try to come to Canada to make their claims here to increase their chances of obtaining protection. These population movements will in turn create pressure to make the Canadian refugee system as difficult for refugees as the United States system now is.

Sixth, the agreement creates the risk of chain deportations; deportations from Canada to the United States and then to another country, any other country, after that. All that's required for a chain deportation to occur is the consent of the Government of Canada. There is no need for a refugee determination. There is no determination even by the government officials that requires them to look to see whether the person would be safe.

This consent, we expect, would be automatically forthcoming. If this government has been so intent in pursuing this agreement, it's not going to do what it believes would be frustrating it by withholding consent when the U.S. asks it.

Seventh, there is a multi-year United States backlog in the American refugee determination system. Canada is more or less up to date in its refugee determination system. So what we would be doing with the agreement is taking people from a system where they are getting their claims heard and putting them into a system where they would be stuck in multi-year delays and further bogging down a system that is already bogged down.

The Chair: I would like you to conclude, please. We have three sets of witnesses today and we're not going to get through by 11 a.m. if you don't conclude. We do have your brief, which we appreciate.

Mr. Matas: Let me conclude by saying the agreement makes no sense. It's a solution for which there is no problem. It confers no benefit on real refugees seeking protection. Moreover, it poses a number of problems for these refugees and for the Canadian immigration system.

It's perplexing to the Canadian Bar why the government seems so intent on having this agreement when it creates so many problems and the government itself can articulate no clear reason for it.

The Chair: Thank you very much.

[Translation]

Mr. Nunez.

Mr. Nunez (Bourassa): Congratulations on your excellent presentation. I see that you have prepared a very sound document from a legal standpoint, both in English and in French. Your arguments are weighty and highly convincing. I hope that they will serve as a reminder to the members of the Liberal majority that when they were in opposition, they were against this draft agreement.

My first question concerns the possibility of challenging this agreement before the courts in Canada. If this were possible, which provisions of the Charter could be invoked? Also, would it be possible to challenge this agreement under the international Convention relating to the Status of Refugees? The High Commission representative who testified before the committee two days ago expressed some very serious reservations about this document. What recourse is available, either before the Canadian courts or under international agreements?

Mr. Matas: In my opinion, the draft agreement flies in the face of the charter and international agreements. If it is enacted, I believe there will be legal challenges as well as appeals to international courts.

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If this were to happen, the agreement would remain in force. People would be affected. Canadian or international courts would hand down a ruling, but only after several years had elapsed. A ruling won't come overnight. I think we need to do something right away, not a few years down the road.

Mr. Nunez: My second question concerns international human rights instruments. Some NGOs are critical of the fact that this draft agreement makes no reference to the Convention Against Torture, to the International Covenant on Civil and Political rights or to the Universal Declaration of Human Rights. Two days ago, the minister seemed prepared to consider the possibility of including in this agreement a specific reference to these international instruments. Do you believe that this would be enough to make the agreement acceptable or do you still feel that even so, it would be pointless to adopt it?

Mr. Matas: I think the inclusion of such a reference would not be sufficient. These international instruments must override the provisions of this agreement in the event of a dispute. The document does contain a reference to the Geneva Convention on Refugees, but in the event of a dispute, the agreement takes precedence, not the convention. This poses a problem.

If the Convention on Refugees and international human rights instruments take precedence, there shouldn't be an agreement in the first place as it flies in the face of these instruments.

Mr. Nunez: My third question concerns the lack of mechanisms to resolve eventual disputes. All of the agreements between Canada and the United States that I am aware of provide for dispute settlement mechanisms. I'm thinking in particular about the NAFTA. Canada is presently negotiating a trade agreement with Chile and provisions for dispute settlement mechanisms will be contained in a special chapter.

What mechanisms should we be considering? Should the High Commission for Refugees be assigned the role of monitoring the implementation of this agreement? What is your take on this situation?

Mr. Matas: The High Commission must be actively involved, but if it is opposed to the agreement, there is no point in adopting it. If it is actively involved, it will ensure that the agreement does not work. Why involve the High Commission if it objects?

With respect to disputes between the two countries, the government informed us that this agreement will be included in the legislation and spoke of a ministerial order, which means that claimants would be able to go before the courts to demand the agreement be upheld and to argue their case. Conflicts will arise, not only between Canada and the United States, but also between the claimants and Canada and between the claimants and the United States.

If the two countries are in agreement and the claimant is opposed, and the court rules in favour of the claimant, there will be no possible way of resolving the dispute using the mechanism set out in the agreement. It is not up to us to say what the dispute settlement mechanism will be. We do not want to improve upon the agreement; we want it to be rejected.

The Chair: Thank you very much.

[English]

Ms Meredith.

Ms Meredith (Surrey - White Rock - South Langley): Thank you, Madam Chair.

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There are a couple of things I would like to address. I want to start off by saying first that if the United States is a signator to this agreement, they obviously stand to gain something. I would have to assume that they stand to gain a lot or they wouldn't even consider entering an agreement such as this.

I get the impression that you are seeing it strictly from Canada being forced to refuse refugee claimants into our country because they landed in the United States. Is there not a benefit to Canada from individuals who are landing in Canada and then going down to the United States to seek status down there? Isn't this what this agreement is all about, to try to make it clear what the conditions are so that both Canada and the United States can deal with the issue of individuals who are landing in either of the countries and then travelling by other means to the other country?

Mr. Matas: There are some Americans here who are going to testify later on, but I have talked with some Americans about this, and as far as I can tell, your assumption that the Americans want it is mostly false.

This agreement was not negotiated with the INS, the American immigration service, which, as I understand it, historically has been opposed to it. Eventually it was agreed, not with the INS but with the Department of State. It's an unusual agreement in the respect that our foreign affairs people were not involved and their immigration people were not involved.

From what I understand, there was disagreement between the Department of State and INS about this agreement. The Department of State - at least according to what I heard, and I was down in the United States and heard American officials say this - wanted the agreement or were prepared to sign the agreement because the Canadians were so keen on it and they wanted to be friendly towards them.

So as far as I can tell, there is no real American desire or felt need for it.

Ms Meredith: I can assure you that having spoken to congressmen south of the border on several occasions, there is a very real concern by the United States, at least in the west coast area of the country, that there is an increasing number of individuals entering the United States illegally that there is no control over. So maybe the officials are not concerned, but I know for a fact that some of the individuals, from a political point of view, are very concerned with increasing traffic flowing from Canada to the United States.

The other thing I want to address is your comment about what you call refugee claimants in orbit. You give the impression that these individuals will be travelling back and forth from Canada to the United States and then from the United States back to Canada because of this agreement. Am I fair in assessing that?

Mr. Matas: I'm talking about them being on the launching pad.

What I expect will happen is people will be caught waiting for determination on allocation. They may not actually be pushed back and forth. They will physically be in one place but there may be back and forth between the governments, one of them saying it's yours, another saying it's yours, and the person is waiting for all this to be sorted out.

Ms Meredith: But isn't that why this agreement sets up timeframes, so that if an individual lands by air in the United States and takes three or four weeks before they end up making a claim in Canada or before they get caught being illegally in the country, they belong to the point of entry, to the United States, and vice versa? If they land in Canada and end up in the United States and are caught three, four, or five weeks later, sorry, you landed in Canada; obviously you had enough time to get to the United States and make your claim and you chose not to do that.

Mr. Matas: First of all, this is not a problem now. You can't say that this agreement is solving that problem, because we don't have that problem now. It's creating that problem.

Ms Meredith: I would disagree with you on that, sir.

Mr. Matas: If you look at the rules, they're not that simple. There can be disputes of fact: was it 48 hours, or was it not; was it ten days, or was it not? Those aren't the only time rules; there are lots of other rules. For instance, were you out for more than a year? Were you there three years? There's a whole series of rules about timing.

When you get questions of fact, there can be disputes about fact. Different people can have different positions on what those facts are, and it can take time to figure out what the facts are. So you set up this whole mechanism to figure out whether it is forty-eight hours, ten days, one year, three years, and somebody is just waiting there for this to be resolved.

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Ms Meredith: Isn't the purpose of this agreement somebody who enters a country and decides five or six months later that their opportunities for a positive acceptance of their application for refugee status is better in the other country, and the only reason they're even making that claim is because they were caught? It was brought to somebody's attention that they didn't have legal status, and then they decide where is the best place to go. Isn't that what this agreement is trying to catch?

Mr. Matas: Well, it's very hard to say what it's trying to catch, because whatever you can think of that it might be trying to catch - and you've given an example - it catches all sorts of other people who aren't affected by your conception of what it's trying to catch.

Ms Meredith: Who else does it catch?

Mr. Matas: Take somebody who was picked up at the airport in the United States, has 48 hours to get to Canada, has a ticket to come to Canada within 48 hours, but is held 72 hours for questioning in the U.S. It catches such a person.

Ms Meredith: Okay, how do we prevent this agreement from catching such a person who has a ticket to Canada, who's fully intending on going, but because of other circumstances didn't? What can be done in this agreement so that person doesn't become an innocent captured victim to the agreement?

Mr. Matas: It's very simple. You don't have the agreement.

Ms Meredith: But then you're throwing out the baby with the bathwater. If that's a particular problem, surely we can do something with this agreement to address that problem and still have the agreement address my concerns about people who are in a country illegally and when they're brought to somebody's attention they start trying to decide where they're more likely to get a positive reception.

Mr. Matas: You mention illegal migration. But this agreement is not directed toward people who are in a country illegally. It catches all the legals as well, people who conform with all the requirements consistent with making a refugee claim and have never been underground at any time. They're affected by this agreement, too.

Ms Meredith: Then why don't they make a claim in the country that -

The Chair: I'm sorry. Thank you. Mr. Dromisky.

Mr. Dromisky (Thunder Bay - Atikokan): Thank you very much.

One of my questions has already been addressed, regarding the time factor in the process. So it's quite possible not only for the same kind of thing to happen - that is, the detention of a claimant in the United States - but we could do the very same thing here in Canada and delay someone and make them miss the next plane to the United States and keep them for a longer period of time, and therefore they no longer meet the requirements of the bill.

However, do you see this bill as a sort of catch-all, a kind of levelling of the playing field for both parties concerned simply because there are such great, great discrepancies and differences between the two legal systems dealing with refugees and immigration acts, and so forth? Is this a simplification, a kind of catch-all to make things easier for both countries?

Mr. Matas: It's not a levelling of the playing field because it doesn't change the two systems. There's nothing in the way of harmonization, or a common appeal, or common standards. It's an arbitrary intrusion into the process for a few claimants saying that you can't go where you were planning to go, where you have connections, where it makes sense for you to go, and we're going to send you somewhere else where you don't know anybody, where you don't want to go, and where you have a lesser chance of being recognized and you're going to be treated more poorly. That's creating a lot of bumps. It's not levelling anything.

Mr. Dromisky: Let me continue with that. As we know, right now in Congress they're dealing with a summary exclusion bill, an all-encompassing umbrella kind of act that's going to cover maybe much of what this act has to deal with too. This, to me, in a sense, could appear as an attempt to have an omnibus bill that will supersede anything and everything the United States has agreed with, or any treaty or bill they have signed with Canada, or any other country for that matter. I wonder where we are going with this in light of the fact that there is this new bill that's going to be coming on the horizon in the very near future.

Mr. Matas: That's a very good question. I have no idea where they're going with this. At the very least we should wait to see what the bills are, whether they pass, and how they would interplay with this agreement, because if the summary exclusion bill is passed, there are two possibilities. One is that the agreement will impact on nobody because everybody we would send to the U.S. would be summarily excluded and therefore they would come within one of the exception clauses of the agreement.

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The other possibility is that the summary exclusion bills would impact on people sent back to the United States, in which case the agreement would totally frustrate the purpose of giving protection to refugees.

Mr. Dromisky: This agreement is what you're talking about.

Mr. Matas: This agreement here, yes. We should wait to see what the bills are and how they would connect with the agreement. If the agreement and the bills, when passed together, mean we're going to send people back to the U.S. and they are caught up in summary exclusion proceedings and they never get to make a claim, then I think everybody here would be concerned about that.

The Chair: Mr. Wappel.

Mr. Wappel (Scarborough West): Sir, I believe you said the refugee claimant's best shot - I think those are your words - is in Canada. Is that right?

Mr. Matas: What I was saying by that is looking at percentage of acceptances for the countries of origin. I haven't done it particularly for every country, but that's my impression. Except for Cuba, on the whole the Canadian acceptance rate is higher.

Mr. Wappel: So it would be fair to say that in your opinion as an experienced immigration lawyer the best chance for a potential refugee claimant in the entire world is in Canada.

Mr. Matas: I was comparing it with the United States.

Mr. Wappel: Let's compare it with the entire world. Do any other countries have a better acceptance rate, in your experience or knowledge?

Mr. Matas: The trouble with acceptance rates is that -

Mr. Wappel: Whatever yardstick you want to use, is any country better than Canada in its treatment of refugee claimants?

Mr. Matas: Sweden comes close, in terms of non-return.

Mr. Wappel: Is it better, in your opinion?

Mr. Matas: It depends on the year. In some years Sweden has not returned anybody at all.

Mr. Wappel: Overall, is it better, or is Canada the best - ``the best shot'', in your words?

Mr. Matas: On the whole, I would say I wouldn't trade the Canadian system for any other.

Mr. Wappel: Neither would potential refugee claimants, I would suggest.

Let's have a look at the protocol, paragraph three:

That is an assumption upon which the protocol is based. Do you disagree with that assumption?

Mr. Matas: Yes.

Mr. Wappel: What is your basis for disagreeing with that assumption?

Mr. Matas: I have two bases for disagreement. First, I reject the language of ``irregular movements'', which may be confusing in its context. Irregular movements are not illegal migrants. These are not people who have violated the law. ``Irregular movements'' is the language of totalitarianism. All that's irregular about irregular movements is that they're not approved in advance by governments. It's like calling speech ``irregular speech'' because it's not approved in advance by government. I think the whole notion of basing an agreement on irregular movements is offensive.

Secondly, it's based on a hypothetical, not that they will get protection in that individual case. I would have no objection, if somebody is actually getting protection in the United States, to saying you have to go to the United States or you have to stay in the United States. That would not be a problem from the protection point of view. But this agreement says because there's the theoretical possibility - which may be denied in your case - of protection, you're are forced back to a system where in fact you will not get protection and you will be turned away from a system where you will get protection.

Mr. Wappel: You say that in the face of article 5 of the protocol?

Mr. Matas: Article 5 deals only with chain deportations. It says there are no chain deportations unless there is an agreement with, let's say, Mexico, or Canada consents. That's something I talked about before.

Mr. Wappel: I'm sorry, sir. What it says is

Mr. Matas: ``Unless''...and there are two -

Mr. Wappel: ``Unless''...and there are two things.

I have only a few minutes. Do you disagree with the second assumption in paragraph three that the signatory parties are saying, namely that refugees should generally apply for asylum in the first safe country they reach?

Mr. Matas: Yes, I disagree with that.

Mr. Wappel: Why? Why should they be able to forum-shop?

Mr. Matas: ``Shopping'' means you're buying at different places. The United Nations has addressed this issue -

Mr. Wappel: No, I'm asking you, sir, why should a person who gets to Sweden come to Canada to make a refugee claim? Why don't they make a claim in Sweden?

Mr. Matas: For two reasons. One is they may have closer links with Canada.

Mr. Wappel: They're refugees. They're escaping terror. They're leaving with the shirt on their back. They're barely able to escape from the country with their lives.

Mr. Matas: Yes.

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Mr. Wappel: What do you mean they have links to Canada? They should be happy, it seems to me, to get to the first safe country that offers them solace and an opportunity to build a new life.

Mr. Matas: If they're in fact safe there. To say they have to claim in Sweden, where they're going to be rejected, when they can come to Canada and be accepted -

Mr. Wappel: Well that's why I asked you which country was close to Sweden.

The Chair: Mr. Wappel, that will be the last question. I'll come back. Thank you.

Mr. Matas: All right. I thought I answered it.

[Translation]

Mr. Nunez: My first question is of a general nature. You say that currently, there are no problems that would justify the signing of this agreement. When we questioned officials from the Department of Immigration, we asked them to give us some figures on the number of claims made, but they were unable to do so.

Why is the government bent on signing this agreement, especially when it will be detrimental to many people coming from the south, from Central and South America? Meanwhile, the Canadian government is trying to conclude free trade agreements with all of the countries of the Americas to ensure the free movement of capital, goods and services, but not persons.

Do you believe what some people are saying, namely that North America, that is the United States and Canada, are building a fortress to keep refugees and immigrants out? How do you explain the fact that the government is preparing today to sign this agreement, an agreement which, in your opinion, is unnecessary?

Mr. Matas: We have discussed this agreement at length with the government. I haven't heard anyone give a logical explanation for it.

It is not up to me to provide the government with a logical explanation when, in my opinion, there is none to give. There is no real justification for this agreement. None whatsoever.

Mr. Nunez: In your submission, you refer to family reunification, but you made no mention of this in your statement. Is it your opinion that this draft agreement flies in the face of Canada's traditional policy as set out in the Immigration Act and in the Liberal Party Red Book, a policy which promotes family reunification? Do you feel this agreement runs counter to Canada's traditional policy?

Mr. Matas: I would say that it does. The agreement contains a definition of the family which we do not subscribe to, which is not the same as the one in our act. It is a different definition. Under our legislation, some people are considered family members, whereas under the terms of the agreement, they are not.

Furthermore, even though the concept of family is recognized, it is the government which decides, not the individual. If a person is seeking to be reunited with someone defined as a family member in the agreement, the government will be the one to decide if consideration should be given to the family in Canada or the family in the United States. This flies in the face of the principle of family reunification.

Mr. Nunez: The day before yesterday, Professor Hathaway from Toronto recommended that article 12 of the draft agreement be amended. He recommended that this agreement not come into force until the UN High Commission for Refugees guaranteed that Canadian and US laws would be harmonized and that both countries would offer the same level of protection to asylum seekers.

How do you feel about Professor Hathaway's recommendation?

Mr. Matas: I would support an amendment of this nature.

Mr. Nunez: In fact, this was a policy embraced by Mr. Marchi when he was appointed Immigration Minister.

Mr. Matas: Yes.

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[English]

Ms Minna (Beaches - Woodbine): You stated earlier that the department has been in with only the State Department and not the Immigration Department of the U.S. That is not true. For starters, we have been working with both. So that relationship is there. So that was not quite accurate.

You made a statement earlier in which you were talking about how people cannot go where they were planning to go and where they have ties. I don't see that this agreement does that. It is quite clear that if they have a direction they are going in somewhere and the end-point is Canada to start with, or they have ties here, then the agreement doesn't prevent them from doing that.

In addition to the conversation between you and Mr. Nunez with respect to family, I find it difficult to accept that you would agree that this impedes family reunification. In fact, the recommendations that were made by the NGOs, a large number of which are incorporated in the accord, include family ties beyond the nuclear family as being relevant in determination of the person's being able to come to Canada because this is where they have family ties, whatever these may be.

So it seems to me as if we are getting away from some of the core things and extrapolating and expanding in areas, which I think is unfair with respect to the agreement. Nobody will be sent back to where they know no one or they have no family ties. That seems to be very clear.

We talk about harmonization of the two systems, but it would be interesting to hear from you which country would be harmonizing to whom. Would it be Canada harmonizing to the American system? I don't think you would be in favour of that. Would it be the Americans harmonizing to our system? I doubt very much that they would be agreeable to that.

I would rather see the systems being as separate as they are now in dealing with the issue of people who legitimately need asylum. If people are coming to Canada to start with or have family ties here, then they are going to be able to come here. That doesn't seem to prevent anyone.

If people weren't coming here to start with and have been in the U.S. for some time and have decided later that they would rather be here, that is what this seems to be addressing.

I'm having difficulty in understanding and accepting some of the broad statements that are being made with respect to the effects this will have, which seem to go far beyond what the bill addresses.

Mr. Matas: You raised a number of different points.

First, of course I am aware that Canadian immigration officials are in contact with American immigration officials. I was talking about the negotiation of the agreement, not the actual contact.

Ms Minna: But that is like putting a fine line on it. I am sure that if they are involved in discussions, then they are involved in discussing the agreement to some degree as well. It is like saying that we are talking but we're not talking.

Mr. Matas: It may not be as fine as that, because it is my understanding that the American immigration officials didn't want the agreement.

On your comments about ties and getting there, there is a misconception about what this agreement has as its working principle. The working principle is first arrival. It is not family ties or destination. If the working principle were family ties or destination, then it would be a totally different agreement and a good deal more acceptable to us.

The problem with the agreement is the principle of first arrival. That is the operative principle. There is information in there about ties and ultimate destination, but these are exceptions to the principle of first arrival. These exceptions are very detailed and very technical.

In terms of family, in our brief - and I regret that you had not had a chance to look at it before - we have several pages, going from 29 to 32, that go through the problems of family reunification because of the details that are set out there and those that are omitted and the technical problems that are going to arise. Family members trying for reunification are going to be frustrated because of the articulation of the details in the agreement. Rather than read those out to you, I will just refer them to you.

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It's the same with the principle of ultimate destination in Canada. That's not a principle, it's a number of rules about 10 days and 48 hours and three years and all this. There are going to be gaps, like bad weather, detention, or what have you. Because the working principle is that of first arrival and the exceptions are family ties and ultimate destination, rather than the other way around, you get unworkable problems with the agreement. If it could be reformulated to sound like what you're talking about, I'd be a lot happier.

In terms of harmonization, the idea is not to have the Americans look like us or to have us to look like the Americans; the idea is to get it compatible with international standards. The point of having the UNHCR present is so they can say yes, it is within international standards. Right now we have a refugee definition in a refugee determination system that's basically a local option system.

Ms Minna: But this agreement doesn't move away from international standards. If it did, I doubt very much that we would be involved in this.

Mr. Matas: The agreement doesn't say that international standards govern. What I'm trying to point out here is that the refugee definition in the refugee system allows for a good deal of local flexibility. That's why we see the tremendous variations around the world. That's why Canada can seem to be a lot better than other places. To a certain extent what we're doing is within the definition, but it's almost as if it's up to us how we apply the definition.

There is no system to harmonize standards around the world anywhere. It would be positive if we had the UN system trying to say, in much more detail than they do now, that these are the standards that should apply everywhere, and I think that would be helpful. That's why I support Hathaway's suggestion.

The Europeans who have some sort of refugee determination agreement system like this don't have any harmonization on standards. It would be a positive step if we could get something like that in North America.

The Chair: Thank you, Ms Minna.

Ms Meredith, you have the last question.

Ms Meredith: I want to deal with two things. I'll start with the first concern I have because I may run out of time. I want to follow up on something that Mr. Wappel brought up, and I'm a little concerned about your response to him.

When he brought up the third part about the irregular manner in which individuals may move from country to country, you made a statement that governments trying to control the movement of individuals is totalitarianism. You implied that this shouldn't happen, that governments should not be able to control the movement of individuals. I'd like to ask you if you feel that people should be able to enter and stay, in either Canada or the United States, without legal status.

Mr. Matas: I'm here for the Canadian Bar Association, and obviously I think everybody should respect the law.

Ms Meredith: Well, I guess that's why I'm asking you that question. What we're talking about here is the legal status of individuals moving between countries and staying in countries, and that is what this agreement is dealing with. I must admit it upset me when I thought I heard you say that it was totalitarianism for governments to expect people to have legal status in countries.

Mr. Matas: But there's nothing in the law that prohibits anybody from coming to Canada to make a refugee claim. That's not illegal. It's irregular because the government hasn't approved it in advance, but it's not illegal; you're not violating a Canadian law by making a refugee claim in Canada.

Ms Meredith: But it is illegal for a person to be staying in a country without having made a claim of refugee status. If a person comes to Canada or the United States and resides in that country for four or five months or a year or two years, that is against the law. What I understand this agreement is trying to do is to make sure that when an individual enters a country, be it Canada or the United States, they make a claim, and that the claim is dealt with as to its legitimacy in the country where they first arrive.

Unless they intended to go to that country because of family or something that they could argue was a substantial reason for picking that country, this agreement would deal with the legality of people just arriving and picking the best option. When you talk about the UNHCR, my understanding from what I heard from the representative was that he considered the United States to be okay but Canada to be really great.

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That's the difference, as I see it - not that the United States doesn't meet the international requirements of handling refugees but that Canada is much better. I think he called it blessed and doubly blessed.

I would like you to respond to that, because I get the impression, not just from you but from others, that the United States is not meeting its international obligations for refugees.

Mr. Matas: Again, there's a couple of points there.

Sure, there are problems with the American system. There's widespread detention, I would say in violation of the convention. In terms of application of the definition, we can go through components of the definition and how they're applied differently in Canada and in the United States, in terms of due process and in terms of credibility assessment. One can make the comparison.

But if I may say so, to answer your question and to make a comment on some of the other questions as well at the same time, the questions show the problems we've had in dealing with this agreement. We hear from the questioners justifications for the agreement or understandings of what the agreement is about that are sort of beside the agreement. They're not really addressing the agreement head-on.

This agreement is not about illegal migration. It's about legal migration as well. In fact most of the people who will be affected by it will be people who are legal in either or both countries. It's not about people who are going straight to Canada or the United States. It's not about family reunification. This agreement is simply an agreement of first arrival - legal or illegal, family or no family, directed or non-directed - and then there are some technical exceptions to deal with some of these other issues.

It cannot be justified on the basis that you're concerned about illegal migration, because that's not what it's about. It can't be justified on the fact that you believe in family reunification, because that's not what it's about. The principle of first arrival, which is what it's about, has no resonance in international standards, and it's going to create conflicts with international standards.

The Chair: Thank you very much for coming before the committee. We look forward to your future presence.

We'll ask our second set of witnesses, the Canadian Council for Refugees, to please come forward. I welcome Nancy Worsforld and ask her to introduce the other members who are with her today.

Ms Nancy Worsforld (Executive Director, Canadian Council for Refugees): Good morning, Madam Chair and members of the standing committee.

The Canadian Council for Refugees is an independent coalition of 145 groups from across Canada. My name is Nancy Worsforld. I am the executive director and have been so for six and a half years.

Roberta Farkas-Huezo is from VIVE in Buffalo. VIVE is a non-Canadian associate member of the Canadian Council for Refugees and has been working with us on this and other issues since 1990.

Ezat Mossallanejad came to Canada in 1985 as a refugee from Iran. He works as a refugee policy analyst for the Jesuit Refugee Service (Canada) in Toronto, which is a CCR member.

Janet Dench is the CCR policy and program director. She has worked for the CCR for five and a half years, and with refugees for the past nine.

To avoid repeating previous presenters of today and Tuesday, we will not talk about why the 145 members of the Canadian Council for Refugees object in principle to this deal. We want to explain the human side of this deal and to comment on some of the things said on Tuesday.

We are convinced, after years of closely observing the department, that the MOA will be an administrative disaster. It is just like the ill-conceived credible basis stage, which was sold as a cost-saver in 1988 and millions of dollars later was scrapped as a cost- and time-waster in 1993.

You have been told that we have been consulted and that our recommendations have been heard. Yes, civil servants have sat through meetings where we made our case over the last couple of months. Have our recommendations been heard? Well, our principal recommendation was that the deal not go ahead.

We've asked about costs of administering the deal. We've had no answer. We've asked for evidence of asylum shopping. There is no such evidence. And we have asked what will happen if the legislation before Congress goes forth. There is no contingency plan.

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Consultation is only consultation if the results have not been pre-decided before the meetings are held and if all the information is on the table. Otherwise, consultation is a mockery of democracy and it should shame those who organize that.

Robbie will now speak to the human reality of coming to Canada through the U.S.

Ms Robbie Farkas-Huezo (Canadian Council for Refugees): Good morning. Bonjour. I am the refugee services coordinator of VIVE Incorporated, a non-profit organization located in Buffalo, New York.

For nearly 12 years, VIVE has served the needs of refugees from all over the world as they make their way across western New York to seek asylum in Canada. VIVE is by far the largest organization helping refugees across the U.S. to settle in Canada. We serve slightly fewer than 2,000 people a year. VIVE operates a shelter, which cares for more than 100 persons per night. These are men, women and many children coming from about 40 countries. The largest group is from Somalia; the second-largest is from Sri Lanka.

VIVE serves exclusively persons who would be affected by the MOA. VIVE feels that this agreement should not be undertaken and signed at all.

I would like, however, to focus my comments this morning on the transit provisions of the MOA, by comparing those provisions to the typical flight paths of our refugee clientele.

A refugee's route to safety is often circuitous, dictated by modes of transportation, finances and entry requirements. Legs of the journey may reflect what is possible under present circumstances, only eventually leading to the intended final destination.

For many refugees, travel to Canada from their countries of origin is impossible without passing through the United States. This is dictated both by flight schedules, in the case of air arrivals, and geography, in the case of land and sea arrivals.

Refugees often exhaust their funds before they reach their destination. They may have to stop en route to secure additional resources to continue on. They may have to change to less expensive, slower transportation. Many Canada-bound refugees, for example, arrive in the U.S. by plane, and then take buses to Buffalo or Detroit, where they apply at the Canadian border.

Often, refugees are detained by authorities before reaching their final destinations. Whether formally detained or merely delayed by a lengthy immigration examination in the country of first arrival, refugees often find the time of their journeys extended by factors far beyond their control.

The transit provisions of the proposed agreement are unfair and unrealistic for refugees who must painstakingly piece together their journey through one country in order to apply in the other. Refugees often sell all their possessions and spend their last bit of money to finance their flight from persecution, arriving in North America with few or no resources remaining.

The MOA, as it stands, contains a hidden bias favouring those who have the funds to travel faster. Similarly, it contains a hidden bias against those from Latin America and the Caribbean, for example, whose travel routes are limited by geography. Finally, it contains a hidden bias against women and children, who often cannot travel as quickly as can men.

These biases are completely unacceptable. In an effort to determine the extent to which VIVE's clientele would be affected by the proposed MOA, I recently studied the transit times of a random 10% sample of the Canada-bound refugees who had arrived at VIVE within a three-month period. Approximately 60% of my sample would have been adversely affected by the transit time limits set forth in the MOA.

Statistics and random samples, however, are dry and devoid of emotion. To illustrate the very real effects such an agreement would have on refugees seeking Canada's protection, I would like to quote from a report compiled by Jessica LaBumbard of Freedom House, an organization located in Detroit, Michigan, which, like VIVE, works with Canada-bound refugees:

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This case is but one example of people who have suffered horribly in their countries of origin and who are able to find in Canada the peace and safety they needed to begin to rebuild their lives. For each Marta there are hundreds more with equally compelling stories. If Canada signs the memorandum of agreement, it will close a viable and vitally important door to bona fide refugees in desperate need of Canada's protection.

The Chair: You have two minutes left and I'm going to stick to that time.

Mr. Ezat Mossallanejad (Canadian Council for Refugees): I would like to share with you the reasons asylum seekers choose Canada as their country of refuge. Our experience shows people choose Canada for the following reasons.

First and foremost, they come for reasons of family reunification. ``Family'' in this regard means extended family. The draft MOA has a very restricted approach to the definition of family. We know the story of a Rwandan who lost all of his family members except a cousin in Canada, who is now the most important person in his life.

Second, they come because they have friends in Canada. I came to Canada because I had many childhood friends here, schoolmates and jail-mates from the time when I was in jail for political reasons. I consider them the closest of my kin.

I wonder why an MOA should come into the picture and deny people like me the choice of destination. Coming to Canada made it possible for me to reunite with my former jail-mates and fellow political activists who would facilitate my resettlement in a new country.

Third, people come to Canada because of our multicultural and multi-faith approach. They feel more at home here and they can begin to contribute to our multicultural society sooner.

Fourth, I knew Canada was a free society. When I was a high school student, I could not imagine that one day I would end up in Canada as a refugee. I'm happy and proud to be here and happy I can contribute to the Canadian heritage. It puzzles me that our government arbitrarily wants to close the door to people who hold a good image of our society.

Fifth, people come to Canada because here they will enjoy the support of their communities and they can in turn help strengthen those communities. Our society has gone through lots of ordeals in history in an attempt to strengthen ethnic communities as a part of our multicultural mosaic. Canada cherishes diversity.

The Chair: Sorry, I'm going to interrupt you. We're here to discuss the draft agreement and not Canada's multicultural system. But I thank you very much for your testimony.

I'll begin with questioning. Mr. Nunez.

[Translation]

Mr. Nunez: Congratulations on your two presentations. You stated that the Canadian Council for Refugees represents 145 agencies. That is a considerable number. Everyone appears to be opposed to this draft agreement. I would like someone to tell me who supports the agreement, because I haven't seen any agencies or witnesses tell us: "Bravo! We support it." That's my first observation.

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Secondly, I find your testimony quite relevant. This agreement has been examined from a legal standpoint, but people sometimes forget that behind agreements of this nature, there are human dramas unfolding. What you related to us earlier was very interesting.

You stated that real consultations had not actually taken place. The day before yesterday, the minister informed this committee that consultations had taken place and that several of the recommendations made by NGOs had been endorsed. Is that an accurate statement? Which recommendations were accepted? Has enough been done?

[English]

Ms Worsforld: Since this draft agreement was made public last November, there has been a meeting in Washington, which the Canadian Council for Refugees boycotted because we believed it was a boondoggle. We felt it was an inappropriate use of tax money for people to be flown down for a three-hour meeting, which, we were told, would have no conclusions and no report.

Mr. Nunez: Mrs. Meredith....

Ms Worsforld: There have subsequently been meetings with civil servants. We do not know from those meetings if our recommendations will be accepted, and as I said in my presentation, our key recommendation was that the agreement not go forward. Obviously, that has not been accepted.

With regard to the recommendations the minister referred to, I would like to ask Janet to reply.

Ms Janet Dench (Policy and Program Director, Canadian Council for Refugees): On Tuesday the minister made reference to the fact that the MOA apparently incorporates 15 out of 26 recommendations made by the CCR. The recommendations to which he referred were made by the CCR in 1993, in the context of a completely different draft agreement.

While the current draft goes some way towards addressing some of the concerns we raised, the majority of our recommendations, including those we consider fundamental, were not taken up. This is why we remain completely opposed to the agreement.

[Translation]

Mr. Nunez: In your opinion, do refugees have the right to chose the country in which they will make their initial claim? This principle has been challenged here. In your opinion, is this right guaranteed under the convention?

Ms Dench: Yes, practically speaking, this right does exist. The government told us that it had adopted the principle of the country of first arrival, but so far, it has been unable to prove to us in any concrete way that this principle is entrenched in international law.

The Chair: Thank you.

[English]

Ms Meredith: Maybe Mr. Nunez, not being a mother, doesn't realize you can read and listen at the same time.

I want to thank you for appearing before the committee. We appreciate the positions you are representing. I would like to ask the representative from VIVE one question. You may or may not be able to answer it.

You indicated that in your organization, the largest number of refugee claimants you deal with are Somali, and the second are Sri Lankan. Why would they not be interested in applying for refugee status in the United States? Is there some reason the United States would not accept their claim as refugees, so that they feel they need to get to Canada?

Ms Farkas-Huezo: In fact the United States does have a Somali community and in the past has accepted Somali refugees. There is not a significant Tamil community - Sri Lankan community - in the United States.

In regard to why they wouldn't want to apply to the United States, I think it goes further than that. First of all, many people come for reasons of family reunification, and family reunification beyond the limited family reunification provided for in this agreement. So if my entire family has been killed in a country and I have an uncle or even a neighbour who can provide me moral support, that's very important.

I think it's very important to realize that we are looking at more than just legal support. A legal solution is part of it, but moral support is necessary. It's necessary to have people who can provide you with resettlement assistance, not only financial, but moral.

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Ms Meredith: Do you feel there can be a change to this agreement that would recognize in some cases where all the family members have been killed, where the second cousin twice-removed is the only living relative.... Do you feel that can be accommodated in this agreement?

Second, just because an application for refugee status has to be dealt with in the United States, for example, it doesn't preclude that individual from connecting with family as a landed immigrant application once their status has been made legal in either country. That doesn't stop them from extending that relationship or that legality to the other country down the road.

I think you're saying because they're denied refugee status or because they have to claim refugee status in the United States it's going to prevent them from ever having any settlement in Canada. Unless I'm really misreading the way our government works, I don't think it's a fair statement to say that it cannot be a continuing process for this individual down the road.

Ms Worsforld: May I ask Janet to respond to the first legal question?

Ms Meredith: Sure.

Ms Dench: We're certainly pleased that there are some exceptions for family reunification in the agreement, but there are questions about who is included. There are also questions about how it is going to be applied in practice.

The comments made Tuesday by Daniel Therien of legal services were very disturbing to us. He said that the exceptions to the first country of arrival rule, including the family reunification exceptions, would be at the discretion of the country the person is trying to enter.

What he seems to be saying, if I understand him correctly, is that if someone arrives at the U.S.-Canada border and fits into one of the exceptions - for example, a woman whose family is all in Canada - and if the immigration official at the Canadian border does not choose to believe her and says that she has no right to come to Canada, he can do so, give no reason for doing so and neither she nor the United States have any right to object.

Ms Meredith: I challenge how you perceive it. I think what we're doing, and what I'm hearing from a lot of the witnesses, is that we're reading a lot of problems into something. Perhaps what should happen in this agreement - and to be quite honest with you I'm not sure whether it's here - is a period of looking at the results of this agreement, reviewing it and making changes if necessary.

Maybe we should have a clause that this agreement is in place for one year or two years at which time it will be reviewed to see what is happening. I'm hearing a lot of comments like ``this is probably what is going to happen'' when we don't know that the individual who says all of her family is living in Canada, they're the ones that are going to be supporting her so she will not be a burden to the government....

You're assuming that the person at the border is going to say no, forget it, go home. Why don't you assume that person would recognize the benefit and allow that individual in?

Ms Dench: Because we have a lot of experience with this kind of thing.

The Chair: Thank you very much, Ms Meredith. I believe article 13 addresses what you just said.

Mr. Wappel

Mr. Wappel: Ms Dench, could you cite for me the section of the 1951 convention relating to the status of refugees or the 1967 protocol, which provides that a refugee claimant has a right to determine where to seek asylum?

Ms Dench: The convention says nothing about where a claimant will have to seek asylum and it does not say that there is a first-country-of-arrival rule.

Mr. Wappel: Thank you. There are many maxims in the law and one of them is that hard cases make bad law. I happen to subscribe to that. Is it accurate to say that the UNHCR has recognized that American standards meet or exceed international standards in the determination of refugee cases? Is that true?

Ms Worsforld: I think your next witness will be addressing that. Our principal fear that we set out in our written brief was the legislation before Congress rather than the current situation. Yes, the Americans -

Mr. Wappel: We can't talk about the future. I mean currently.

Ms Worsforld: The UNHCR has raised concerns particularly about the detention practices in the U.S.

Mr. Wappel: Is it accurate to say that UNHCR has said that the American system meets or exceeds international standards at the present time? Is that an accurate statement or is it false?

Ms Dench: I don't know. I've never seen it.

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Mr. Wappel: You've never seen what? The statement?

Ms Dench: The statement, yes.

Ms Worsforld: I don't know.

Mr. Wappel: Well, I'm just making it.

Ms Dench: You've heard the UNHCR say that?

Mr. Wappel: Yes. So are you disagreeing with that, or don't you know, or are you assuming that the UNHCR hasn't reviewed the American system?

Ms Dench: If you say that the UNHCR has said it, how can we doubt you?

Mr. Wappel: Okay. If that is the case, then let us take the hypothetical circumstance of a person who has absolutely no connection whatsoever to Canada - no friends, no relatives, no cousins, nothing - and arrives in the United States. Why shouldn't that person's claim be determined in the United States, even if they want to come to Canada because, let's say, they think they have a better chance?

Ms Worsforld: I would like to point out that about 8,000 people come across the U.S.-Canada border in a year and there are over 400,000 in the U.S. backlog. People are not coming in droves from the U.S. to Canada, even though it is true that our system has a higher acceptance rate.

Our understanding - anecdotally, obviously, because we don't have the means to have the hard data, as only the government could have that - is that people come to Canada because of connection to Canada. Our belief is that this deal will adversely affect those people.

Mr. Wappel: But you didn't answer my question. Why shouldn't a person who has no contact whatsoever with Canada and who lands in the United States have to claim refugee status in the United States?

Mr. Mossallanejad: Fifty percent of refugees are victims of torture. When the U.S. spoke about protection, a part of protection is resettlement. Refugees, especially victims of torture, suffer from post-traumatic stress disorders. In Canada we have some humanitarian organizations, spiritual institutions, that take care of victims of torture.

You know that Mr. Marchi, the former Minister of Immigration, granted some $260,000 to the Canadian Centre for Victims of Torture. There is no family reunification, no connection, but they know that as victims of torture they have a better chance of recovery in Canada.

Ms Farkas-Huezo: Depending on the country a person comes from, there may be a very good reason. The United States, because of its prominence in the country, has many political considerations that, unfortunately, have often entered into the arena of asylum.

In the 1980s the United States accepted almost no Salvadoran and Guatemalan refugees. There was a court case, called the ABC case, in which the immigration system basically admitted that it had unfairly precluded Salvadorans and Guatemalans from receiving benefits under the asylum system, and the INS is now in the process of reajudicating all of those cases, almost all of the Salvadoran and Guatemalan asylum cases of the 1980s.

Bill Frelick, who will be the next witness, will probably be able to speak much more eloquently about that. I am not a legal expert.

Mr. Wappel: But the American judicial system caught that problem and is addressing it.

A voice: How many people died in between?

Mr. Wappel: I don't know. How many lived?

[Translation]

Mr. Nunez: What we are hearing here today has been mentioned in previous testimony. There has been talk of the United States' treatment of Haitians and Cubans. The boat people were sent back without the benefit of a hearing. These are the cases with which we are the most familiar. Are there other cases where people have been turned back without being given a hearing?

[English]

Ms Farkas-Huezo: Is the question whether other people have been sent back without having a hearing? Once again, I am not a legal expert. I work for a regional organization.

The Chair: Our next witness will probably answer that question. Let's go on.

[Translation]

Mr. Nunez: As you just mentioned, the acceptance rate for refugees coming from Central America was once very low, only 2%. Apparently, the rate is now around 25%.

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When the civil war was raging in El Salvador, serious human rights violations occurred in Guatemala and other countries. Why is the United States behaving in this manner toward legitimate refugees from Central America?

[English]

Ms Farkas-Huezo: Basically, my understanding is that it is because of the political situation of the U.S. internationally. At the height of the Salvadoran civil war, the U.S. was supporting the office of the Salvadoran government at the rate of $1 million a day. It had been a very difficult situation for the U.S. to say yes, we are sending $1 million a day to El Salvador to support this war, and at the same time recognize the Salvadorans who were coming to the United States as refugees.

[Translation]

Mr. Nunez: We have been told that the prison system in the United States leaves a great deal to be desired. You are familiar with the Buffalo region. Can you tell us a little more about these poor prison conditions?

[English]

Ms Farkas-Huezo: Yes. In the United States refugee claimants are often incarcerated. We at VIVE work quite regularly quite regularly with several immigration district directors to try to secure the release of refugee claimants who desire to come to Canada but who were detained along the way. This, of course, is a problem because of the transit limits, and there is no exception in the MOA's transit limits for people who are detained. So what we will try to do on occasion is write a letter of support asking the district director to release the person from detention so that he or she may continue to Canada, which was after all his or her original destination to make his or her refugee claim. Sometimes we are successful, other times we are not. Of course the times we are not are the problematic cases.

[Translation]

Mr. Nunez: The agreement does contain several exceptions in the case of claimants who have already made a claim in the United States and wish to make another one in Canada, but there is no mention of language issues. For example an African may arrive in the United States but have no desire to live there because only English and Spanish are spoken. He wants to live in French and would like to come, for example, to Quebec or New Brunswick. Isn't it logical for these people not to want to file a claim in the United States, but rather in Canada, for language reasons?

[English]

Ms Worsforld: We have identified that as one of the problems, particularly with regard to, currently, the Algerian community. There are communities who do come to Montreal specifically because they're able to live in French, the Algerian refugee community being one and the Haitian refugee community being another. But yes, we see that as a problem, and yes, the agreement will adversely affect those people who wish to make their refugee claims in Quebec because they are francophone.

[Translation]

The Chair: Thank you, Mr. Nunez.

[English]

Ms Minna.

Ms Minna: I just wanted to go back a little bit to pick up on the consultation process that was mentioned earlier. I understand the frustration, having sometimes been on the other side trying to make presentations to government bodies on things that I felt strongly about, so I appreciate your position and your strength towards them. I have some difficulty understanding the boycotting of a consultation, though, because while you may not have agreed with the process, there was an opportunity to put stuff on the table. It's sort of like saying you'll only consult on your terms. I've generally taken the approach that putting something on the record is worth while, rather than not at all.

In any case, the fact of the matter is whether the fifteen the recommendations were made in 1993 or were made more recently, the government did take into account a number of them. While they may not have been the ones you specifically wanted -

Ms Worsforld: It wasn't fifteen, either.

Ms Minna: Well there were quite a few, actually, and that suggests there is ongoing dialogue.

This is an international draft agreement, which normally isn't put to a public discussion or to a committee. Usually, different kinds of bills come to committee, not international draft agreements, and this again is another opportunity. You may not have felt as comfortable or as happy as you like in your consultation with the officials, but there's an opportunity to put stuff on public record here again.

So I just wanted to say that from my perspective, when an opportunity comes up to put something on a public record, I take it. I find it strange that you chose not to.

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Ms Worsforld: May I respond to that? We advocated very strongly.... Eleni's office received I don't know how many telephone calls from me, harassing her to hold these hearings. Yes, we consider putting things on the public record in this kind of context appropriate. We opposed, and so did the Liberals when they were in opposition, the provisions of the 1980 bill, which made this kind of agreement something within the department rather than something that would have gone to Parliament previously. Yes, we feel this kind of opportunity is important, as long as the results are not predetermined, just as we considered talking with our civil servants. This is something the CCR is involved in extensively on many, many issues. Yes, we agree.

I don't agree with you that going to a private foundation in the U.S. is putting things on the public record. It's a meeting organized by a private U.S. foundation. I believe as an organization we have a responsibility to choose our opportunities and to make sure we are representing our membership well. We did not feel the amount of money the government was willing to spend to bring down a couple dozen people from Canada for a three-hour meeting, from which we were told there was going to be no report.... It didn't make sense to us.

Ms Minna: My point, though, is that influencing decision-making is your primary role, or ought to be. If I were on the other side, that's what I would be looking at. So going to whatever venue is offered me.... I don't want to beat it to death.

Just to go back to the issue raised about the American 1980s decisions, I wanted to check this with you. My understanding is that currently the U.S. foreign policy...the 1980s concerns that yes, foreign policy considerations sometimes affected asylum decisions have been effectively dealt with, and that U.S. asylum now is made without reference to state. In fact, the department officials have access through the INS documentation centre to a wide range of other information, including our own IRB, and that's a different process as a result of what had happened at the time. Am I wrong in that?

Ms Farkas-Huezo: That may well be, but it has not done much to help the situation with the interdiction of Haitians or Cubans. So I think foreign policy concerns still are playing a role.

Ms Dench: Bill Frelick will be answering your questions in that regard.

Ms Minna: Maybe we can get into more depth then.

Ms Dench: There have been significant improvements, but on the table are very disturbing developments that are possibly about to be adopted in Congress.

Ms Minna: I'll come back to this.

The Chair: Ms Meredith.

Ms Meredith: I want to raise an issue, and I guess to challenge some of the comments that were made here just a few minutes ago, that there really isn't that much movement. I think you, Nancy, mentioned the numbers it's going to affect coming into Canada from the United States are not that great.

Ms Worsforld: I said 8,000 people.

Ms Meredith: So 8,000 people. Well, 58% of the claims that arise in Canada come from the United States; one-third of the refugee claimants.

Ms Worsforld: Is it 58% or one-third?

Ms Meredith: I'm sorry. It's 58%, approximately one-third of all claims, that travel through the United States. So it's 58%....

Let me read this:

So this isn't just refugee claims, it's all claims.

Ms Worsforld: There are no other claims.

Ms Meredith: I would assume they're talking about immigration in general here.

Ms Worsforld: No, they're talking about 58% of port-of-entry claims, which don't include in-status claims, and one-third of all claims, which for the last few years have been between 20,000 and 25,000. So one-third is about 8,000.

Ms Meredith: Okay. Explain to me, then, what the difference is.

Ms Worsforld: A port-of-entry claim is somebody who arrives at a port of entry, either a physical border point such as Buffalo or an airport, and at that time asks for refugee status. That's a port-of-entry claim.

Ms Meredith: Is that the 58%?

.1035

Ms Worsforld: Yes, but there are other people who make refugee claims who are, for instance, on a student visa in Canada -

Ms Meredith: Okay, but what we're talking about is port of entry claims that would be picked up under this agreement; 58% of them in Canada come from the United States.

Ms Worsforld: Yes, and that's about 8,000 people.

Ms Meredith: So 58% of the port of entry claims of people claiming refugee status inland come from the United States.

Ms Worsforld: No, not inland; port of entry. That's about 8,000 people.

Ms Meredith: Okay. So this number is accurate, then; 58% of port of entry claims come from the United States.

Ms Dench: We have no reason to protest that.

The Chair: What is your source, Ms Meredith? That might help.

Ms Meredith: It's the House of Commons Library of Parliament, Research Branch.

Ms Worsforld: That makes sense. That would be 8,000 people.

The Chair: Just for the record.

Ms Meredith: The other numbers I think are important to bring up at this time are that the United States recognition rate is 22% compared to the Canadian rate of 70%. Would you agree with those figures?

Ms Worsforld: Yes.

Ms Meredith: So for somebody who is looking for a positive result of a refugee claim, it would make a lot of sense to try to get to Canada to be recognized to make that claim.

Ms Worsforld: If you knew all of that information, perhaps it would, but that's not the way people live their lives. The fact is there are nearly half a million people waiting in the U.S. for determination, and they're not all flocking to Canada.

Ms Meredith: And those people will not even fall under this agreement, is that right? This agreement will only deal with those people making the claims and falling under the conditions of this agreement from the time of its signature. The backlog in the United States is not affected at all in this agreement. The backlog in Canada -

Ms Dench: If somebody who is now in the U.S. decides, after this deal has been signed and enters into force, to come to the border, yes, they would be affected.

Ms Meredith: I think there's a limitation in this agreement that they have only six months, I believe, to do that. So if they were in the United States longer than six months they would not fall under this agreement.

Ms Worsforld: That's not our understanding.

Ms Meredith: That's what I'm getting from this agreement here.

Ms Worsforld: The point I would like to make is that all of those people could come to Canada tomorrow, and they're not going to.

Ms Meredith: If they have been in the United States for longer than six months they could come to Canada, but they would not be allowed to if this agreement is passed.

Ms Worsforld: If they had been in the United States more than 48 hours or more than 10 days, depending on how long, they would not be able to come to Canada.

Ms Meredith: That's right, and that's where you have a problem with this agreement. That's your concern, that these individuals don't have the choice of coming to Canada to make their refugee claim, knowing that their chances of acceptance are considerably greater than in the United States.

Ms Worsforld: No. Our concern is that people who are coming to Canada should be able to choose that. We have conceded that people should not have the right to make refugee claims in both countries, so if you've made your refugee claim in the U.S., then no, you should not have the right to come to Canada and make another one. We have said that.

Ms Meredith: But this is dealing with people who haven't decided to make a claim anywhere for whatever reasons, who have been in the United States for a longer period of time than six months.

Ms Worsforld: Not six months; 48 hours or 10 days, such as in the case Robbie described.

Ms Meredith: I'm talking about the backlog you were talking about, these thousands and thousands of people who haven't made a claim in Canada and probably won't. Then you said these individuals would. If they made claim now, after this agreement is signed, they would qualify.

Ms Worsforld: No, that's not what I said. What I said was currently they could come up and they're not likely to come up. This agreement is sometimes sold by the civil servants as a way of preventing those people from coming, but there's no evidence to suggest that they're likely to come anyway.

The Chair: I thank you very much. We've run out of time. I thank the CCR again for coming before this committee.

I would ask Professor William Frelick to please take the stand. We shall begin right away.

.1040

Professor Frelick, due to the time constraints, I would ask you not to read the written brief you have deposited before this committee. I'm also going to have to cut the time we gave you to five minutes to allow for questions, because some of the members have other committees and other obligations to get to at 11 a.m. I apologize, but we do have your written brief and it will be part of the testimony on the record.

Mr. William Frelick (Senior Policy Analyst, U.S. Committee for Refugees): I'll be making references to it throughout.

The Chair: Thank you.

Mr. Frelick: First, I'm not a professor.

The Chair: Oh, I have you down as Professor Frelick. I apologize.

Mr. Frelick: I represent a non-governmental organization, the U.S. Committee for Refugees, which for 37 years has worked on behalf of refugees throughout the world.

I also wanted to tell you that there is an ad hoc coalition of U.S.-based NGOs that has been studying the MOA and has been involved in dialogue with the U.S. government on the points of the MOA. I'm not officially representing this coalition, but this week it sent a letter to Attorney General Reno and Secretary of State Christopher, which is incorporated on the second page of my testimony. You can see the listing of the 64 organizations, which comprise a wide range of religions, such as Jewish, Protestant, and Catholic; refugee organizations; human rights organizations; and so on and so forth.

The thrust of that letter is to challenge the fatally flawed presupposition of the MOA about the notion of the country of first arrival. It also points out that the UNHCR executive committee's conclusion 15 says that the intentions of asylum seekers should be taken into account wherever possible, and furthermore that asylum should not be refused solely because it could be sought from another state.

The MOA in front of us does both of these things. There's no suggestion in any executive committee conclusion of the UN High Commissioner for Refugees that the state of first arrival should be the operating principle for allocating responsibility for examining an asylum claim.

On pages 11 and 12 of my testimony I go through U.S. case law to show that in fact in the practice of the United States these executive committee conclusions have been respected and the notion of firm resettlement has been the operative principle for ruling an asylum application to be ineligible. But that involves a very close connection, in fact, and an offer of permanent resettlement.

With the country of first arrival as the operating principle, it does include within it the logic of chain deportations. In fact, article 5, which you referred to in your question earlier, would be fine if it stopped before the word ``unless''. But what is problematic for us is that after it says ``unless'', it then talks about allowing for either country to enter into agreements with third countries and, with the consent of the other country, to allow people to be returned to those third countries.

We see this as a slippery slope, and in fact the experience of our European colleagues has shown that chain deportations do in fact occur under such agreements. Pages 15 through 17 of my testimony give some case studies compiled by the European Consultation on Refugees and Exiles, which I really recommend that you take a look at, to show the way that people do fall between the cracks when they apply for asylum in countries like Belgium and Denmark. These are countries that we would expect would be very careful about not wanting chain deportations to occur, and yet they've happened nonetheless.

We have to question and wonder why it is that the United States would enter into an agreement like this. Ms Meredith, you pointed out that there must be something in it for the United States. In the short term it's very hard to see what the benefit would be because clearly, with the kind of approval rates that you were talking about yourself and the numbers that are available to us, it does suggest that we would be talking about an increase, certainly a net increase, to the United States of over 5,000 and perhaps over 10,000 a year that would be added to our backlog, which currently is at 460,000 cases. So it is hard to see what is in it for the United States and why it wouldn't be considered a bad deal.

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This leads to speculation. The speculation is that the United States wants to enter into further agreements with other countries so that we can turn refugees back who are attempting to come to the United States.

The intent of this was clearly evident back in July 1993. Some of you might recall when the Chinese boats off the coast of San Diego were diverted down to Mexico. They were sent to Mexico from which the people on those boats were summarily repatriated to China. The United States paid for those deportations. There was a presidential, executive order that paid $450,000 to the Mexican government to do that. In fact, there is a line item in the state department budget now for deportations of third-country nationals from Mexico.

The Chair: I'd like you to conclude. I'm sorry. I could apologize for the time limit.

Mr. Frelick: Let me just say a few words about the pending legislation.

One point is that the pending legislation, which has a very good chance of passing, has a very wide provision on third-country removals. It basically says that, concerning any country willing to accept an asylum seeker, even a person granted asylum, a person could be removed to that third country without regard to their ties to the United States and without regard to their lack of ties to that third country.

So if you're a Jewish asylum seeker and Israel is willing to take you, it doesn't matter what your circumstances are, that you have no connections to Israel in terms of family, that you do have connections to the United States, you could be sent back to Israel. That's in the pending legislation actually being marked up today in the Senate subcommittee on the Senate side.

It also has summary exclusion proceedings. I think it's very important to know, from the Canadian perspective, that in the U.S. asylum context, there's no court-funded representation. Therefore, you have people having to defend themselves who will be at an airport without representation or the knowledge of how the system works.

The 30-day time limit on filing raises the same kinds of problems, because you will have people who have to line up pro bono attorneys, who are very scarce. If they do line up such a person, they'll have to make an appointment with that person. The pro bonos do their own screening, and have to set up appointments. It takes more than 30 days to even get in the door to have an NGO see you in many cases.

So, in many senses of the word, if this legislation passes in Congress.... I've seen what the rules committee has allowed for amendments before the House floor, and the amendments on the 30-day limit have not been permitted by the rules committees. So there's no chance of that being amended on the House floor.

If that goes through - we do believe that it will go through - then, in many respects, most asylum seekers arriving in the United States will not be able to have representation. They will not be able to apply for asylum. Then, of course, you also have the summary removal procedures for people arriving without documents.

So I urge you to wait to see what's going to happen with this legislation, and then enter into an agreement if you feel the United States is a worthy partner.

Thank you very much.

The Chair: Thank you very much.

Mr. Nunez.

[Translation]

Mr. Nunez: I'm disgusted that we invite a witness from Washington, DC and then give him less than half an hour to testify.

The Chair: He has tabled a brief, Mr. Nunez.

Mr. Nunez: He could have faxed it to us.

The Chair: Thank you very much. Please put your question, if you have one.

Mr. Nunez: I had also requested a copy of the document submitted by the High Commission to the US and Canadian governments. We have not yet received it. In addition, I requested a copy of the Coalition's submission to President Clinton. We haven't received this document either. How do you expect us to do our work in a conscientious manner?

Mr. Frelick, you represent a coalition of organizations opposed this agreement. How broad is your coalition? Are there any NGOs in the United States which support the agreement?

.1050

[English]

Mr. Frelick: I'm not aware of any NGOs who have gone on record in support of this agreement. The coalition includes every major religious denomination, Jewish, Catholic and Protestant: Church World Service; Lutheran Immigration and Refugee Services; U.S. Catholic Conference; and Hebrew Immigrant Aid Society. It includes the major refugee organizations in the United States, including some fairly conservative ones such as International Rescue Committee. It includes World Relief, which is the evangelical branch of the Protestant church. It includes every major human rights organization in the United States, and the world for that matter, including: Human Rights Watch; the Lawyers Committee for Human Rights; and Amnesty International. It includes the American Immigration Lawyers Association, a major trade association involving every immigration attorney in the United States. It involves many of the local organizations such as VIVE that presented earlier today.

It's a remarkable coalition of organizations that are in opposition to this agreement.

[Translation]

Mr. Nunez: You state in your submission that this draft agreement is not compatible with international and US norms. Could you elaborate further on this statement?

[English]

Mr. Frelick: Yes, the UN High Commissioner for Refugees, as we heard earlier today, in the 1951 convention, the questions of irregular movement -

Mr. Nunez: Excuse me. Why did the U.S. not sign the international convention on refugees?

Mr. Frelick: I think that's pretty much a technical point. We did sign the protocol. The convention is geographically limited to Europe and to pre-1951 refugee movements. By ratifying the protocol, in effect, it made it a moot point to have to ratify the convention as well, but it does look a bit odd, I must say.

But in terms of the international standards, the UN High Commissioner for Refugees, through the executive committee, which is comprised of governments including Canada and the United States, does formally establish the norms for the treatment of refugees. In those executive committee conclusions there are no conclusions that say that the operating principle of burden-sharing agreements should be based on what country the person first arrives in.

Conclusion 58, which has to do with irregular movement, which was mentioned earlier today, only relates to people who have actually been offered firmer settlement in one country, who have been offered protection in one country, who then go on and move from there.

Essentially, what we have been recommending is that if the person had a full and fair adjudication in one country, then yes, that's the place where they ought to stay. Even if it's a denial, if they do manage to move on to a third country from there, then you could have an information-sharing agreement between the two countries whereby there would be a presumption of manifestly unfounded that they would have to overcome.

But to preclude people from having a hearing at all simply because they arrived in another country first, there's no ExCom conclusion that says anything about that, that says that is an appropriate norm of international behaviour. That's the point we're raising. In fact, ExCom Conclusion 15 says just the opposite. It says that the intention of asylum seekers should be taken into account wherever possible, and it says specifically that a person should not be precluded from applying for asylum solely on the basis that they could have applied in another country first.

[Translation]

Mr. Nunez: How do you explain the fact that the refugee acceptance rate is so low in the United States? Does it have the lowest acceptance rate of all industrialized countries? Do you have any comparative figures?

[English]

Mr. Frelick: We do have comparative data on that. In fact, the U.S. approval rate is higher than many European countries in terms of granting convention status, but most European countries have much wider what I guess you would call the humanitarian and compassionate exceptions here. They have much wider non-deportation policies for people fleeing civil war, for example.

The United States has really been very narrowly focused. The interpretation of each word of each clause of the refugee convention is interpreted in about as narrow a manner as possible. The interpretations of membership in a social group, for example, are much more expansive in the Canadian context and in most European contexts than they are in the American context.

.1055

The Chair: Ms Meredith.

Ms Meredith: I want to deal with the perception of many of the witnesses that the United States is less than satisfactory in its handling of refugees and refugee claimants. Yet in your written submission on page 10 you say:

That doesn't lead me to believe that the United States has been unreasonable or has reneged on its obligations under the United Nations refugee expectations. Why do people have this impression?

Mr. Frelick: The point we were making there is that the United States has been consistent with those ExCom conclusions. If they entered into this MOA they no longer would be in conformity with those conclusions and in fact, if this legislation passes they wouldn't be either. This legislation would change the definition of firm resettlement.

There are any number of other points of law. We had the discussion earlier today about the 1980s with respect to Salvadorans and Guatemalans. There's a class action suit on their behalf that was referred to and those cases are now being readjudicated. There has been asylum reform. As was mentioned earlier, there is a specially trained corps of asylum officers now and we have seen improvements.

Nevertheless, within the last year, in January, 1995, the UN High Commissioner for Refugees publicly chastised the U.S. government for its final screening of the Haitians at Guantanamo before forcibly repatriating them to Haiti. The UN High Commissioner for Refugees frequently makes interventions on particular cases.

For example, on the questions of the definitions of aggravated felons the definitions have been applied specifically to the Immigration Act in a way that precludes people with relatively minor drug offences, for example, from a refugee determination hearing.

The UN High Commissioner has said this is completely incompatible with the standards of defining a serious crime or a threat to the community. He has said that the United States is not engaged in the balancing of mitigating and aggravating circumstances that one needs to do. There are those kinds of cases that do come up that are interpretive cases about the meaning of the exclusion clauses, for example, and the convention.

Ms Meredith: Again, when you talk of balance, you mention on page 12 that:

So I have the feeling from what you're saying now that there have been changes in the United States, that they are not playing hard ball like they used to, that they are being held to account for some of their behaviour in the past and that changes are being made to the system as a result.

I guess I'm hearing from you that maybe the U.S. isn't the bad guy....

Mr. Frelick: In my written testimony I do suggest that the timing of this creates the notion of the window of opportunity, which is that even up until this time last year I don't think Canada would have been comfortable entering into an agreement of this sort because of the treatment of the Haitians and the situation in Haiti.

Throughout the 1980s, it was the law you had on immigration - I think it was 68 or whatever - that had the first notion of a safe third-country list. My understanding was Canada was unwilling to create such a list because of the United States. Now we're just on the verge of having a new law, with major significant changes in points that are very relevant to whether the United States is going to be an acceptable partner, and we're entering into an agreement during this very small window of opportunity, whereas a year ago it wouldn't have been acceptable and six months from now it may not be acceptable again.

.1100

So yes, I would agree with you that right now the United States' conduct is the least objectionable that it's been in years and years.

Ms Meredith: I'm cutting in because I'm going to be running out of time. How long are we looking.... You're saying a bill is in place. You said six months. Is that the timeframe you're suggesting this agreement should be put off for? How long is it going to take that bill to progress through the system?

Mr. Frelick: It's this session of Congress. Senator Simpson, as you know, is retiring at the end of this session of Congress, and I think Congress would very much like to pass the bill during his last stand. He's been Mister Immigration for many years.

So I think it will pass in this session of Congress. It is now before the floor of the House and it is currently being marked up in the Senate judiciary committee. I really don't see any chance that the bill is not going to pass Congress. What the president does with it is another question.

It's a huge bill, as you again are probably aware. The major points having to do with the reduction of immigration levels, and even the reduction of refugee admission levels, are consistent with the Barbara Jordan commission on immigration reform report. So I think the president, particularly in an election year, will be hard pressed to veto this bill. I think it has not only a very good chance of passing Congress but a very good chance of becoming law, because these provisions, while they are highly objectionable, are lost in the shuffle in the larger immigration debate.

Ms Meredith: Have them in law by when? We need this date. What timeframe? What date? Six months down the road? The end of the session is when?

Mr. Frelick: The end of this calendar year, I believe, is when -

Ms Meredith: So we're talking December of 1996.

Mr. Frelick: Yes. I'd have to check the congressional calendar.

The Chair: Mr. Dromisky.

Mr. Dromisky: First of all, Madam Chair, I think we have to clarify something here. We've been doing a lot of talking about acceptance rates, and I think we are unaware of the fact that acceptance rates in both countries are something different. In other words, they're not the same. The United States, I understand, includes such things as those who are accepted and the cases that are rejected plus the cases that are abandoned. In Canada we don't include the abandoned portion of the claimants in our total figures. As a result, we get different figures to play with. So our judgments could be tainted or skewed in different directions because of those figures. Is that correct?

Mr. Frelick: Actually, I think what we have tried to do is to look at only the cases accepted, cases rejected -

Mr. Dromisky: And not cases abandoned.

Mr. Frelick: - and not include the cases abandoned in that 20% and in the 70% rate. So we have taken out the otherwise closed from those statistics. We tried to make them as consistent as we could in making that assessment.

Mr. Dromisky: In general, though, we don't do that. You've done that.

Mr. Frelick: But I think that's reflected in the 70% and 20% rates.

Mr. Dromisky: And that's universal? Everybody uses the same approach?

Mr. Frelick: When we publish those statistics in the World Refugee Survey, for example, which are considered a reliable reference for governments and non-governmental organizations alike, in using European rates, Canadian, U.S., we do try to look only at cases decided.

Mr. Dromisky: In light of the fact that the vast majority of the claimants enter through the United States, that our definitions of refugee vary from country to country, and that in the States especially there are very peculiar variations, depending on political positions and relationships between specific countries at any given time, I'm a little concerned. In all this bill contains there's a strong possibility, in my mind and I think in reality, that the United States could end up being the filter for refugees coming to the North American continent - not just to the United States, but to Canada as well. In other words, it's possible for the United States to assume the responsibility of having the vast majority of control over who is going to be a refugee in Canada or the United States in light of the conditions in this bill.

.1105

Mr. Frelick: I think it's fair to say that's what the effect of the memorandum of agreement would be. Many more people seeking to go to Canada from the United States would be turned back to the United States than vice versa.

Is that the point you were making? I'm not sure. I would confirm that this looks to be the case.

Mr. Dromisky: Yes, but I'm going a little bit further. I'm talking about the point of entry and the fact that within a certain number of hours, certain decisions have to be made. All right? And right there at that moment, decisions could be made governing and controlling the flow of refugees. We could detain them because our definition and the American definition might not be the same at that given time.

Mr. Frelick: And particularly if you have the summary exclusion provisions in place for airport arrival, or actually port-of-entry arrivals. They don't necessarily have to be by airport. They could be by boat, for example.

If you have the thirty-day limit for filing claims, you combine the thirty-day limit for filing claims on the U.S. side with a ten-day limit for an allowance for transit on the Canadian side. You have many people - there's the case of the Guatemalan woman, Marta, which was presented earlier today - who would be ineligible on the U.S. side and would not be admitted on the Canadian side either.

Mr. Dromisky: I'll give you a simple scenario. The official in the United States says to the claimant that he can't be classified as a potential refugee because the claim is not supported by anything being presented. Therefore, the individual is told to go back to his country and won't be let through even though he might want to or intends to go to Canada. The person is told he is not a refugee and that the U.S. is making the decision, not the Canadian government.

Mr. Frelick: Yes, I think that would be happening.

Mr. Dromisky: Okay, so that could happen.

Mr. Frelick: If I understand correctly what you're saying, yes, that's evidently the case.

Mr. Dromisky: Even though across the border, we could be saying that person is a legitimate refugee and we will take him?

Mr. Frelick: Yes.

Mr. Dromisky: So that individual loses out.

Mr. Frelick: I think it's a case - particularly in the case of allocating responsibility - of there being little to no regard for the intention of the claimants. For example, when they do have family on both sides of the border, it's a government bureaucrat who's going to make the decision on which is the closer relationship. In the refugee reality, though, you'll go to the relative who's best able to help you and most willing to help you. That may not be the closer blood link. It may be the person who's financially able to help you.

Again, I might add that since the January, 1995, asylum reform in the United States, there has been what is called a decoupling of work authorization from the application for asylum: in the first six months after you apply for asylum in the United States, you get no work authorization, nor do you get public assistance. Essentially, for the first six months after a person has applied for asylum in the United States, he's on his own and basically has to avail himself of the support of family and friends if he's going to survive during that period of time.

The Chair: It would be great to know from the members whether or not they would like to continue. I understand some have other meetings. I cannot continue past 11:30 myself, but do we want to go until 11:30?

Okay, we'll have one more round of questions.

[Translation]

Do what you like, Mr. Nunez. This is your opportunity.

Mr. Nunez: Thank you very much. Sometimes, I agree completely with you.

We have heard rumours to the effect that there were differences of opinion within the US administration over the benefits of this agreement. There is some question about whether or not it should be signed. I heard that the Secretary of State wants to sign the agreement, but that immigration officials are not very supportive of it. Can you tell us anything more about these differences of opinion, given that you are based in Washington?

.1110

[English]

Mr. Frelick: Obviously we're not privy to all the discussions that are happening within our administration behind closed doors. However, it clearly was the case that during the Bush and Mulroney administrations, when this came up previously, there was no question at that point. It became publicly quite evident that the Immigration and Naturalization Service was quite strongly opposed to an agreement at that time.

I'll be coming back; I'll be moving from here to there. Tomorrow we'll be having another meeting with our government officials. Perhaps we'll hear more from them, although I presume that they will present a united front at the point of that meeting. However, I think it's fair to say that the arguments that have been promoted in favour of the agreement have to do more with a broad foreign policy relationship, for example, with Canada and with the development of future agreements, which is more in the interests of the State Department.

Certainly in the short term - and I don't mean the immediate short term, because of the exceptions and the couple of articles that talk about 150 for the next year or so.... When this agreement would really come into full force, certainly it would be an added burden to the Immigration and Naturalization Service. There's no getting around that.

Without disparaging them, government bureaucrats are not looking to do more work and to have larger caseloads to have to deal with. So I think it goes without saying that this is not something particular they're enthused about.

[Translation]

Mr. Nunez: When the Haitian and Cuban boat people were turned back in droves, were any specific provisions of the US legislation violated in the process? Was this decision to turn back these waves of asylum seekers without granting them the benefit of a hearing challenged in the US courts?

[English]

Mr. Frelick: Yes. It was brought before the U.S. Supreme Court. The case was Sale v. Haitian Centres Council. The UN High Commissioner for Refugees submitted an amicus curiae brief to the court in support of the Haitian claimants, to say that this was a violation of the refugee convention. They said it quite clearly. The refugee convention prohibits the return of a refugee, in any manner whatsoever, to a place where his life or freedom would be threatened.

Through what I would have to say was a very convoluted process of reasoning, the court interpreted return to require entry, and since these people were interdicted in international waters, the court concluded that they had never entered and therefore technically they weren't being returned. In fact, they were being returned. What was happening was obvious to anyone.

The court allowed for the summary return, and it created a precedent that I think is still having ramifications both in the United States and throughout the world.

Under the new shipboard screening procedures specifically, there are new procedures but they're only for Cubans. They're nationality specific. If Cubans are interdicted on the high seas, then essentially they are read their rights and told how they can have a prescreening aboard ship before being sent back to Cuba, or, in the absence of that, have in-country processing through the U.S. interests section in Havana.

There are no standing guidelines of any sort for any other nationality, including Haitians, now. So essentially we're right back to the situation we were in in the early 1980s, when we had interdiction with summary return and no screening for any other nationality.

Mr. Flis (Parkdale - High Park): If I am repeating a question, then rule me out of order, Madam Chair.

I've been a member of Parliament for 12 years now. My constituency staff in Toronto spend 60% to 80% of their time helping refugee claimants, immigration cases, etc. Somehow we have to reduce that time, and if any agreement will reduce it.... I just don't have the human resources to be spending 60% to 80% of the time on refugees and immigration. I don't know if you would have a comment on whether such an agreement would reduce processing time, etc.

.1115

My question is on security. Before the claimant will finally be landed the person must go through a security check. Is it not possible that if the claim is processed in the U.S., the security check can be refused if the claimant is from Cuba or El Salvador, etc., whereas if Canada were doing the security check, Canada would give the green light? I'm wondering if we can have some clarification on that.

Mr. Frelick: Again, I'm not entirely sure.... You're talking within the context of a refugee claim?

Mr. Flis: Yes. Is it not true that eventually the claimant would have to go through a security check?

Mr. Frelick: Yes, I think for both countries.

Mr. Flis: That's right.

Mr. Frelick: I don't see the difference.

Mr. Flis: Do the security checks have the same standards?

Mr. Frelick: That I don't know. I don't have the competence to answer that question.

Mr. Flis: I think it's very clear because of the difference in foreign policy with certain countries. Canada could approve the security check. The U.S. would turn it down.

Mr. Frelick: I would say this with respect to the weight that is accorded to criminal convictions. For example, if a person were carrying a small quantity of drugs into the United States - the example I gave earlier - that would virtually preclude the consideration of the asylum claim, whereas my understanding is that in Canada, the seriousness of the crime would be weighed against the seriousness of possible persecution upon return, which is the appropriate standard the UN High Commissioner for Refugees has established. There would be those kinds of differences between the two systems of government.

Mr. Flis: So the question of fairness comes out where one refugee claimant is accepted and another one refused.

Mr. Frelick: Yes. In the case of an Iranian, for example, who not only would have a political background, having been a political dissident, but on top of that were known as having been a drug trafficker, the Iranian government has summarily executed people not only for political dissent but for drug trafficking as well. There are very serious consequences for people who could be returned from Canada or the United States to a country like Iran, who have some combination of political opinion, or fear of persecution, together with a criminal conviction. It's not an uncommon occurrence.

I think Canada has understood that and has made allowances for that in a way that is quite humane, in my opinion, and the United States has essentially treated it in a very cut-and-dried way. In fact both in the Immigration Act of 1990 and in the pending bill, the U.S. is expanding the grounds for a definition of aggravated felons for purposes of exclusion from asylum in the Immigration Act.

The Chair: Mr. Wappel.

Mr. Wappel: Thank you. I'll be brief.

I know where the discussion was going, but I can assure you my constituents have no interest in granting asylum status to drug traffickers, regardless of what would happen to them in their country of origin.

All three witnesses pointed out the terrible 450,000-person backlog in the U.S. system. I feel constrained to point out that is an infinitesimal portion of the United States population. If we divide that amount by 10, which is the rough percentage of the population of Canada, we get to about 45,000 in backlog, and certainly this country has been known to have at least double that. So I don't consider it a major international scandal to have 450,000 people applying for refugee status or having their immigration hearings held up in the United States, out of a population of 300 million.

I have a very specific question. By the way, thank you very much for your brief. In your letter to Janet Reno and Warren Christopher, which was signed by, among others, Lawyers Committee for Human Rights, you state in the second paragraph that the principle of forum shopping ``clearly violates the internationally accepted principle enshrined in UNHCR Executive Committee Conclusion Number 15''. I have to assume, therefore, that it isn't the UNHCR executive committee conclusion number 15 that makes it an internationally accepted principle; it's simply restating it. Where can we turn to confirm the bald statement that what is stated in that conclusion is in fact an internationally accepted principle? When I say that, I mean a principle accepted specifically by Canada and the United States.

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Mr. Frelick: It's obviously not accepted if they're entering into a memorandum of agreement of this kind; heretofore, they haven't. In the case law that I pointed out, U.S. law is very, very specific that the only exclusion to consideration, the only ineligibility for considering an asylum claim or a refugee admission, is on the basis of firm resettlement in a third country. It's not for having passed through a third country -

Mr. Wappel: Please don't misunderstand. Your letter states categorically as a fact that there is an internationally accepted principle, which is then restated in conclusion number 15. What treaty, what accord, what protocol can you cite for us, internationally speaking, that enshrines that principle?

Mr. Frelick: It is from conclusion 15, which is the interpretation of the 1951 convention, which says that no claimant should be denied solely on the basis that they could have applied in a third country.

Mr. Wappel: Right. So is it your evidence that a conclusion made by the executive committee -

Mr. Frelick: Which is comprised of the government.

Mr. Wappel: - which is comprised of whatever - automatically becomes an internationally accepted principle simply because it's a statement of the executive committee? Is that your evidence today?

Mr. Frelick: There is no executive committee conclusion that says otherwise.

Mr. Wappel: My question is simple. Is it your evidence - as far as you know, because I'm not sure of your background.... If the UNHCR executive committee draws a conclusion, does that make it an internationally accepted principle?

Mr. Frelick: The ExCom establishes the norms and principles under the 1951 refugee convention and the protocol, yes.

Mr. Wappel: So then your evidence is that Canada and the United States are clearly going against internationally accepted principles.

Mr. Frelick: Yes.

Mr. Wappel: All right. Thank you.

The Chair: I'd like to thank Mr. William Frelick for coming before the committee.

We shall meet next on Tuesday morning, but watch for the notice because it may be at 10 a.m. instead of 9 a.m. Thank you very much.

The meeting is adjourned.

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