First of all, I want to thank the committee for the invitation to speak to you.
I'm the director of the Refugee Forum at the University of Ottawa, and in the past several years we've conducted a great deal of research, not only on the Canadian refugee system but also on other asylum systems, particularly in the other industrialized countries, and I'd be glad to respond to any questions you have in that regard.
I do want to say that I will be speaking not only as an academic but as a former refugee lawyer myself, as a former member of the Immigration and Refugee Board, and as a former chairperson of the board. I'll try to bring all of those very different perspectives to my comments and my responses to your questions.
On this notion of having a system that's balanced, that is fast and fair, every asylum system in the world talks about being fast and fair. They are both code words. “Fast” also means effective; it also means efficient. It does not just mean rapid decision-making.
Similarly, “fair” doesn't simply mean fair procedure. It also means that the decisions accurately reflect the law and the facts of particular cases. It also means that they are well-reasoned decisions with good country information and competent decision-makers.
Often the notion is that “fast” and “fair” are contradictory. My view is that it does not always have to be the case. A wonderful example is when you have well-trained and good decision-makers, not only do you get decisions that are more fair, you get decisions that are faster and more efficient, and you don't overburden your appeal system in the same way. So efficiencies can be gleaned through fair and well-framed decisions.
I do want to note that as a committee you do have a serious challenge, because this is framework legislation. Much of the important information and details are contained either in the regulations, in the Immigration and Refugee Board rules, or even in the hiring policy of the IRB. That simply presents you with a challenge, because you're considering a bill when several pieces of the puzzle you have not yet seen.
I'm going to refer to only three portions of the bill. I will say in the beginning that I publicly supported the bill when it was first introduced. That was a qualified support, but it was a genuine one. It was a very good first step, but it is my view that it would be a disastrous last step, and that it is necessary to introduce some amendments to the bill. I'm going to mention four to you.
The first one is there is simply not enough time at the front end of the system in regard to both the eight-day triage interview at the board and the 60-day setting for the first hearing. Practically speaking, at the triage interview most claimants will not be represented. It's not going to happen. It's not possible to have legally aided lawyers there. Triage lawyers are not going to be getting all of the story; they'll only get some of the story.
With regard to counsel, they're not really going to have enough time to prepare a case, prepare the necessary evidence if it's a 60-day hearing. In the worst-case scenario, the short timelines will drive refugees into the arms of unscrupulous consultants who are closer to the ethnic communities and quite frankly don't need preparation time because they don't do anything other than show up.
That wasn't a flippant comment, by the way. Unfortunately, it happens far too often.
My suggestion is the minister and the IRB should clearly commit to longer timeframes. I suggest 30 days before the interview and an additional 90 days to schedule the hearing. That would be a total of 120 days.
The second issue I'll refer to is the hiring authority for public service decision-makers. It should be specified in the bill. The single most important component in the entire refugee system is the competence and the ability of that first-level decision-maker. If they get it wrong, then you're going to overburden the appeal division, and you're either going to have inefficiencies because too many cases will come back, which is exactly what happens in the United Kingdom right now, or you're going to have unfair decisions being passed on.
In any event, with regard to that, I suggest that those provisions be put in the bill. If you want, I can give you examples where it stipulates that the chairperson is the person to control the hiring authority. If that's not in the bill, then in actuality it's the Public Service Commission that can appoint the chairperson or several other officials. There's no reason not to have that in the bill.
I can also provide you with one statutory example where the bill also specifies that it be an open hiring process. There are very good reasons it should be an open process. If you ask me, I can give you those examples.
The third issue I'm going to raise is our famous safe country of origin list, our SCO list. If you decide to eliminate the list, then that's fine. But if you decide you want to preserve the SCO list, it's very important that it have some legal rigour to it, in particular clear criteria for assessing the SCO and an advisory committee to recommend to the minister potential countries. It is very important to have external human rights experts on that committee to ensure it is going to be objective. A sunset clause for the designation would help. Also, including the word “fair” in the legislation itself would not hurt.
Fourth, as you know, right now there is a complete separation in the act between the humanitarian and compassionate applications and the refugee claim. It's split right down the middle. I think there needs to be some flexibility in regard to that absolute prohibition. There are certain occasions when it should be possible to make H and C applications. I'm going to refer to two situations. Mr. Waldman may refer to others.
First, in my view, it would be possible that when a refugee claimant made their claim and then withdrew that claim prior to their hearing--so we're talking about the front end of the system--they should be able to withdraw that claim and make an application for humanitarian and compassionate residence in this country. It is easier; it is cheaper; it is faster to make an H and C decision than it is for someone to go through the entire asylum process. There's no reason why it shouldn't happen. Some claimants, once they arrive in the country, discover that in actuality the more appropriate route for them is through an H and C application.
Linked to that, there is a very strange provision in the bill that says if you make an H and C application, you can't refer to any forms of harm, what they call the factors, that refer to sections 96 or 97. What that is saying is that if you're afraid of certain kinds of things that affect your life or very serious forms of physical harm, what we would consider persecution, you can't mention any of that stuff if you make an H and C application. Quite frankly, it is ludicrous. But more than that, it does not capture the situation of refugee law in Canada right now. Frequently there's a major overlap between the kinds of discriminatory harm that would be within the H and C application and the stricter definition of persecution. There's a major overlap. They're not different. It would be grossly unfair to suggest to someone that they could make an H and C application, but they shouldn't mention any of the really bad things that happened to them. It really doesn't make sense.
That's all I'm going to say now. There are other issues in the bill, and if you want to ask me about them, I'd be delighted to respond. I know our time is short, so I'll leave it at that.
Thank you.
:
All right, and thank you for the opportunity to speak before this committee.
I'm going to state first of all that I agree with the brief that the Refugee Lawyers Association has presented, and given that there is so much to speak about in this bill, I'm just going to pick a few topics and not try to cover everything.
I agree with Professor Showler that the most important component of the system is the decision-maker up front. You want to have high-quality decision-making at the outset, which is what's going to ensure the integrity of the system, fair decisions, and efficiency, because decision-makers who are qualified and judicious actually do tend to be more efficient overall.
Although this bill is put forward as one that will reform the refugee determination system, I don't believe it really comes to terms with the whole problem of the appointments process. We're going to continue the existing GIC appointments process in what will be the Refugee Appeal Division, and the appointment process for first-level decision-makers isn't truly set out in a transparent way for Parliament to understand at this point. If the board does wind up, as rumoured, supervising some hiring process through the public service, there are no minimum criteria for the qualifications of people who are hired. Qualifications are very easily claimed without a serious vetting of whether people truly are going to be judicious decision-makers.
I believe that Parliament should come to terms with the issue of ensuring a truly arm's-length committee that does genuinely vet the people who are being appointed. This should be across the board at all levels of appointments to the tribunal. In Ontario, the Ontario Court of Justice has an appointment process that is respected and where the committee is made up of people who are truly at arm's length from government. Then the number of selections presented to government, to the minister, is so limited that there isn't the same kind of scope for not appointing the top candidates, as there is now.
With respect to the proposed process, the first aspect of the process will be an interview conducted at the board. Although it's professed that it should be an eight-day interview, I find it hard to believe that the board will be able to stick to that. We've seen this type of problem before. If it is truly done quickly, then, as Professor Showler has stated, it could be quite unfair.
The desire to control what the claimant states and have their first statement be one made to an official at the hearing I think is problematic. It's going to impair people, particularly the most vulnerable, from disclosing all of their information. I'm concerned about how that will impact on people as they progress through the refugee system.
The appeal system does not allow people to prove that they were telling the truth in the first place. That's a grave limitation. It only allows evidence that's quite limited. You have to basically adopt the same test that exists under the current PRRA, the pre-removal risk assessment model, where people often have been telling the truth, but if it's deemed that they should have known better or could have thought of presenting the evidence before, they're barred from presenting it. I think the purpose of the appeal should be to ensure that the appeal board does get the truth.
With respect to legal aid, at present the government and provinces have a cost-sharing agreement, which has essentially been a compromise that has ensured that legal aid has continued for refugee claimants.
In Ontario last year, about half of the funding for legal aid came from the federal contribution. Legal Aid Ontario is concerned about the cost implications of . Just today, they told me that they're coming up with cost estimates of what they believe Bill C-11 will imply for them, and they seem to believe that costs could go up by 50% from last year's totals.
Right now the cost-sharing agreement is going to expire in March 2011. This new system is clearly going to impose some new costs. Also, the CBSA is going to get substantially more resources and the hearing system is going get more resources, which is going to lead to more need for representation on the other side, and I am concerned that the bill does not balance that out or ensure that the provinces will receive adequate funding or encouragement to continue with their legal aid funding. A mulit-year commitment would be helpful to give greater stability to our provincial legal aid plans.
I'll leave my comments at that and invite questions.
Like Mr. Showler, I gave qualified support publicly to the bill when it was introduced, because I believed that it was a good start. Having said that, I agree with Mr. Showler that if changes aren't made to the bill in its current form, the bill will create serious problems. It will certainly result in charter challenges, and I believe that it will undoubtedly fail. That's why I think the work of this committee is vital, because in the end, we all want a fair and efficient refugee determination system.
Some of us, like me, have been through this before. I can say that I was present in 1976, when the Immigration Act was enacted. I was present in 1989, when the IRB was created. I was present in the mid-1980s, when there were significant changes to the procedure. I was also present in 2002, when the procedure was changed again, and I am present again today.
We've seen it. We've heard the promises of the officials over the years that this was the solution. And each time, we've seen that their proposals have not succeeded, because to a very large extent they've ignored the representations of experts.
My first point, and I agree completely with Professor Showler, is that the essential issue is that we have to have competent first-level decision-makers. Over the years we've seen that there have been two practices. The first has been to not appoint competent decision-makers. The selection process has not been satisfactory. The second has been to underfund the process.
The first condition of any successful determination process must be that the system must be one that allows for the appointment of competent decision-makers. I agree with Professor Showler that the decision-makers should be appointed by the chair or under the power of the chair. And the government must make a firm commitment that it will ensure that the appointed decision-makers have adequate resources to cover the quorum needed to make the necessary number of decisions.
The second issue here, in terms of the proposals, is the timing. Again, I agree with Professor Showler and the other witnesses that the timing is completely unrealistic. It's been suggested that because the eight-day interview is only an information-gathering process, the information will not be used against a person. That is completely untrue. In any procedure during which information is recorded and kept, that information can be used at the subsequent hearing to undermine the credibility of the witness. It can be used to point out inconsistencies or omissions. That's why it's vital that the refugee claimant be afforded legal advice before he or she is called in for the interview. That's why an eight-day time period is completely unrealistic.
Even more unrealistic is the 60-day hearing process. To legislate a timeframe--it won't be in the act, but it will be in the rules--that is not going to be complied with really undermines the rule of law. We already have one example of that. At the current time, IRPA requires a Federal Court judge to set down a judicial review of an immigration matter within three months of the date on which leave was granted. Now, because there are too many hearings required in Toronto, and they don't have enough slots, the Federal Court routinely looks at these leave applications, sets them aside, because they don't have slots, and issues the orders months after leave has been decided. That is done to create the legal fiction that they're complying with the act, when everyone knows that they're not. It really undermines faith in the rule of law when you have justices of a court who don't comply with the law because they physically can't. The problem is not the court; it is a law that requires them to render decisions within timeframes that are impossible, given the resources available to the court. So the timeframes are completely unrealistic.
The next issue, of course, is the safe country of origin list, the SCO list. I'm sure that other people have discussed it, so I won't say too much. In my view, a list is not necessary. If the system is adequately funded at both the first level and the second level, the system will be able to deal with the claims in an expeditious fashion. To create a list to create different categories of claimants, some who get appeals and some who don't, in my view is unnecessary and unfair.
Having said that, if you insist on creating a list, I agree with all the recommendations of all the previous speakers with respect to the types of requirements that have to be incorporated into the legislation.
I'd like to speak very briefly about the last point, which is the one that I think concerns me more than any other, and that is restrictions on the humanitarian and compassionate process. The H and C has been part of our humanitarian tradition in Canada for many, many years. Indeed, the Supreme Court, in the case called Jimenez-Perez, in 1984 upheld the fact that immigration officials were required by law to consider humanitarian applications. I've dealt with thousands of persons whose lives have been saved because of the possibility of applying and being accepted on humanitarian and compassionate grounds. It's been the one aspect of our immigration process that's been constant through the years, and it's consistent with our humanitarian tradition.
This legislation will seriously undermine, or in some cases effectively eliminate, the right that people will have to apply on humanitarian and compassionate grounds. In its current form there's an absolute bar to applying once you've made a refugee claim during the entire proceedings, and for a year afterwards. There's no reason for it. The existence or not of a humanitarian application has been held repeatedly by the courts to not have any impact on a person's right to stay in Canada. You can apply for a stay, but they're very infrequently given, and in any event the number of stay applications is relatively small.
Taking away this right, though, has very serious implications. And I'll close by giving you one example. Last week I was in the Federal Court of Appeal on a case that has interest because it deals with the interpretation of the convention. The government lawyer was taking a very extreme position and said the convention should be interpreted in a certain way. One of the justices of the Court of Appeal said, “Well, if that's the case, you're putting people in situations where they're going to be denied refugee status but they could be at risk. What's their remedy?” And what did the lawyer say? The lawyer said what lawyers always say, that there's always a remedy, and the remedy is the humanitarian application, because that's been the last resort that's existed.
It wasn't me saying it. It was the lawyer for the government saying it, to which the Federal Court judge said that if the legislation that's currently before Parliament gets passed, that remedy will no longer exist. I'll tell you that if it gets passed, you'll force us to challenge the legality of that restriction under the charter, because there will be many cases that will arise where people will have compelling cases but will not be able to bring them forward through the legal process.
Those are all my comments at this point. Thank you.
:
It's very hard to answer that question. Of course, I'm not the government. So I can't speak to its motives.
It wants to completely separate the two processes, as though they were completely different. That's a theory. In fact, that's not the case because the reasons for those two processes are mixed.
I would like to add something in English.
[English]
It also does not follow, if you will, the modern theories on forced migration, and this is what we always see at the international level. There is always this observation that people leave their countries for motives that contain a mixture of voluntary and involuntary elements, but you can always make this separation, or try to make this separation, in terms of whether or not
[Translation]
There is a well-founded fear of persecution, for example. Sometimes yes, sometimes no. But the reasons for leaving one's country are mixed reasons.
:
I just want to talk about the appointments at the first level.
On October 20 of last year, the Public Service Commission did an audit. They found that more than half of the Immigration and Refugee Board's appointments were made based not on merit or the guiding values of fairness, transparency, access, and representativeness. Approximately 61% of appointments--or 33 out of 54 appointments--were not made based on merit. More than half of the appointments were made based on partisan considerations, and preferential treatment was given. This was in the audit done by the Public Service Commission.
I am quite worried. I asked the chair of the board, and he said it's not that they weren't based on merit; it was just that they couldn't show the merit. So maybe the hiring was done without a clear process or there wasn't any specific process. I don't know how people were hired.
Now, that is a huge problem, because these are the ones who are appointed by the chair of the board.
Coming back to your first point, Mr. Showler, and then perhaps I'll ask Mr. Waldman, what do you think should be done and what is the clear recommendation that we must have so that the people with merit are the ones who are hired, and they're hired based on competence rather than for partisan purposes?
It's not necessarily based on being a Conservative or a Liberal, though it seems that had been the track record for a few years, but I'm not necessarily casting stones at one party or another. The system seems to be a problem.
I would like to start by saying that the Immigrant Women's Centre of Montreal applauds the present government's efforts to amend the refugee determination process. We understand its priorities in making the asylum system more efficient.
I agree with the minister that a near-58% refusal rate of asylum seekers over the last two years is wasteful, and an average waiting period of 19 months before first hearing is unacceptable. It is therefore vital to encourage the institution of a system that increases Canada's refugee acceptance rate, while significantly reducing delays.
However, it is our position that this reform should not be carried out at the expense of fairness. More specifically, it must not favour what some people might refer to as bona fide refugees--like those who are presently in UN camps, for example--over asylum seekers who may seem more suspicious and opportunistic.
We should not be privileging refugees overseas solely on the basis of a perception that they can more easily be processed and can better prove their claims of persecution to be well founded. If we sacrifice the lives of asylum seekers, who would otherwise become accepted refugees, by making it more difficult for them to adequately present their cases, it might prove to be more economical, but the cost would still be too high.
After careful review of Bill we find that certain of the proposed changes would especially handicap those seeking asylum from gender-based persecution.
I would like to express my concern about the following two proposed amendments. They are subclause 11(2), replacing subsection 100(4); and proposed subsection 161(1), making a preliminary interview mandatory within eight days of being referred to the Immigration and Refugee Board, followed by a subsequent hearing no more than 60 days following that interview. The other one is clause 12, adding a new subsection 109(1) designating countries of origin. Citizens would not be eligible for an appeal at the RAD.
[Translation]
Women, in their country, may suffer specific types of violence related to the fact that they are women, despite an appearance of democracy in those countries. Spousal abuse, trafficking in women and young girls, sexual mutilation, degrading widowhood rites, forced marriage, crimes of honour, sexual orientation and the maintenance of women in the state of minors are a few examples of that.
An obligation for these women to submit to time restrictions, with regard to an interview in the 8 days following the filing of an application for asylum and the first hearing within 60 days following that interview, as proposed in subsection 11(2) of the bill, could place serious constraints in view of the content of the experience of these women.
As some members of Parliament have already pointed out, for a woman who, for example, has been the victim of sexual violence committed by figures of authority and for whom it is impossible, in her country of origin, to even talk about that situation, it will be much more difficult to speak frankly about her experience to an official, particularly since she may not have had enough time to obtain good legal advice.
We understand that, if the official in question finds that the applicant needs more time to prepare psychologically for the interview and hearing, it would be possible to extend the time periods. However, how do you ensure that that official can in fact come to that conclusion if the woman in question has no one to defend it? Can we count on that official being able to read her thoughts? We don't think so.
That's why we strongly suggest to the authors of the bill, first, that they clarify the utility of this interview before introducing it, more specifically with regard to the record of personal information which, we believe, already serves the purpose that such an interview might have.
Second, if the justifications prove valid, we emphasize that the time period granted is sufficient to obtain the assistance of a legal counsellor.
Lastly, the creation of a list of designated countries, in our view, could result in discrimination against women. A list of these designated countries, from which some women seeking asylum come, would have the consequence of denying them access to appeal or a fair and independent hearing that would completely take into account injustices committed on the basis of their gender.
A possible solution to this problem would be to clearly establish the regulations regarding rigorous criteria for selection of designated countries, which would take into consideration the situation of women in those countries.
However, to ensure that our refugee determination system is fair for all, we ask that subsection 109(1) be repealed. This does not mean we aren't sensitive to the problem of countries that generate a high percentage of asylum refusals, but that we believe instead that the necessary time must be taken to propose an alternative solution that wouldn't cause harm to a given group.
Women asylum seekers often have no other possibility than to leave their country and to seek protection at the port of entry. We are seeking refugee status for women who are persecuted because they are women and because we are opposed to the twofold violence of an application processing system that would discriminate against women. That, in our view, would be a violation of the Canadian Charter of Rights and Freedoms and of the Geneva Convention.
Women who file a valid claim based on gender and individuals who file a claim based on sexual orientation and sexual identity will be major victims of this bill—
:
Thank you for this opportunity to address some of the concerns of the Refugee Lawyers Association of Ontario.
We are a voluntary association of about 200 refugee lawyers who practise solely or primarily in the area of refugee law. As refugee lawyers, we have a number of very serious concerns about this bill. We have laid these out in a written brief. It's about 35 pages, and I don't know whether it's been circulated yet. We provided it to Mr. Chaplin last week.
The Chair: We'll get it eventually.
Mr. Andrew Brouwer: Excellent.
Given the limited time available, I've decided to focus my comments today on the very specific issue of that initial eight-day interview, in part because I believe it won't be addressed all that much by some of the other advocates or in the discussion of some of the other issues, including H and C applications and the safe country of origin list that are also of grave concern to us. But hopefully we can get into those issues during our discussion.
As you know, the government is proposing to replace the current written statement, the personal information form, or PIF—which is drafted with the assistance, normally, of counsel over the course of 28 days—with an interview before an IRB official eight days after referral by the Canada Border Services Agency, or CBSA.
Counsel, as I understand it, will be excluded. Whether or not they are actively excluded by law or regulation, practically speaking, they will be excluded, because as others have mentioned, finding a lawyer, developing a relationship with a lawyer, getting legal aid, and then appearing before the IRB within eight days is just not going to happen—and I speak from experience on that.
In our submission, the eight-day interview is neither workable—and I'll explain why—nor fair; nor, would I say, is it consistent with the charter.
Currently, refugee claimants set out in the PIF the basis of their refugee claim, as well as details of their background, their family, where they've worked, and where they've lived over the past ten years. In our experience, the process of developing the narrative portion of their refugee claim, that is, the PIF, is a very difficult and painstaking task. It's really getting someone to open up about what are sometimes the most difficult experiences they've ever had in their lives.
Usually, in order to develop a decent PIF, you need to develop a careful relationship of trust with your client. In my experience, we sit down two or three times, and maybe four times, with the client over the course of the 28 days to develop the relationship, to explain to them that what they tell us stays in the room and that what they tell the board will not go back to their country of origin, and to help them trust us enough to tell us about some of the very taboo experiences they've sometimes suffered.
Under the bill, this process of developing this relationship and setting out these details will be done by an officer eight days after the refugee's arrival. In our submission, given the kinds of information that need to be presented at that time, it's simply not practical. You cannot reasonably expect a refugee who's just arrived, having faced some of the most traumatic experiences we can imagine, to appear before an officer of another government in another language in a foreign country and talk, in any kind of detail, about what they've just gone through. I say this both because of the issue of the difficulty of talking about those issues, and also because of the misconception of many people that when you tell a government, any government, about what happened to you back home, it could well get back to your own government or to the people back home.
In our submission, at least two possible things could happen if we do go ahead and implement this eight-day interview in place of the PIF. One is that where we have a responsible IRB official taking the story down, they'll realize that they can't get the whole story down in one meeting, so there will be an adjournment and then another adjournment as they gradually try to build up the trust that counsel normally needs to do.
In my submission, what we'll see very quickly is a backlog of claims at this very first stage. So instead of what is a reasonably efficient 28-day process, we're going to have backlogs accumulating before that initial officer—which will ultimately delay the process rather than speeding it up, as is the intention of the minister.
The alternative, of course, is that we have officers at the IRB who don't have that same degree of training or commitment to spend the time to get the story, and what we'll get is a cursory interview or an aggressive interview where only some of the information about the refugee claim is actually presented. That, then, will be presented at the refugee hearing. If by that time the person has retained counsel and developed a relationship of trust and told their story, they will finally go to the hearing and tell the whole story. The contradictions between the sparse information given at that first interview and the detailed information given finally at the hearing, with counsel, will be used against them. They'll be found to be elaborating and lying about their stories and they will be refused on that basis.
Neither of those options, either the backlog or a set-up for failure, is an acceptable way to run refugee claims, in our submission.
So from our perspective, this initial interview should be struck. It's inappropriate. There may be other ways, if the board wants to conduct an interview with the claimant, to get some basic information--that's fine, but not the merits of the claim.
Very briefly, I'll just touch on the three other issues, if I may. I have two sentences on each.
One issue is with respect to the safe country of origin list. I would just ask the committee not to be lulled by the idea of objective criteria in the act. It's the position of our association that simply implementing some criteria about what “safe” means is not actually going to protect this law from the equality and charter challenges that we will bring, nor will it fundamentally allow the minister to be constrained by clear criteria.
The second issue is the H and C restriction. Others have talked about it. I hope we'll get some questions on it. Again, eliminating what has been a fundamental aspect of Canadian immigration law for decades is inappropriate.
And finally, with respect to the PRRA restriction, getting rid of access to a pre-removal risk assessment for a year following a final refusal at the board is not consistent with the charter and is not consistent with international law. If it gets passed, it won't last for long.
Thank you.
:
I will do so, sir, thank you.
This paper will focus on Bill C-11's positive contributions to amend the Immigration and Refugee Protection Act and the Federal Courts Act for immigration. This paper does not purport to answer or attest to all aspects of the bill. Other critical details and clauses will be left to our policy-makers, legal professionals, expert commentators, and stakeholders who have a much deeper and profound grasp on the details of the bill.
It is generally agreed that Canada's current asylum system is too slow. It can take many, many years to finalize a claim, and the average time required is about 18 months for a first decision at the IRB because of backlogs. Many refused claimants carry on for years waiting for their issues to be addressed. The delays hurt authentic claims, and spurious claims are detrimental to and further impede this process. The focus must be on obligations to protect individuals fleeing from violence and persecution. This should be done in a timely, honest, and measured but deliberate fashion.
The current system takes far too long. The new bill provides for a much speedier hearing. It is important that refugee claimants be granted status as quickly as possible, as deemed by the IRB. The quicker the hearing, the less likely for false claims and the sooner the claimants can get settled in Canada. The fewer people making false claims, the less likely the system will get clogged or backed up. This is another positive feature of the proposed bill.
Other strengths include access to a system whereby refugees are allowed an opportunity to speak of their situation. Many countries do not allow this. Access allows for fewer people going underground or remaining illegally in Canada. The incentive is for refugees to claim status so they are known to officials. The government can identify claimants easily and this can deter the temptation to go underground.
First-level decisions by the IRB are another strength. They have access to good resources with regard to information about other countries, careful procedures, and refugees get a full and fair opportunity to tell their story. If a claim is accepted, then refugees are permitted to have permanent status. Other countries do not allow refugees to acquire full status as citizens of their host country even when their claims are accepted. Once permanent status has been granted, individuals can set down roots and call Canada home.
The proposed new asylum system would include a refugee appeal division at the IRB. The appeal process would allow new evidence to be introduced if it were not available at the initial IRB hearing. All failed claimants, including those from designated safe countries of origin, would continue to be able to ask the Federal Court to review a negative decision. The idea of being able to introduce new evidence not available at the initial interview allows for a great opportunity to enhance one's case.
Making refugee decisions is an incredibly difficult task. To meet this challenge, a reformed system needs to be based upon the following three pillars: a good first decision, a reliable appeal, and the prompt removal of failed claimants.
Our recommendations are that the IRB place highly trained, skilled, and experienced staff at the tribunal to make sound first decisions; that the IRB undertake a regular review of what are considered to be safe countries; that the CBSA remove false claimants in a timely fashion; and finally that the IRB has discretion to extend the timelines in exceptional circumstances.
Thank you, Mr. Chair and committee.
A number of years ago, the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches, and John Doe brought a case in the Federal Court challenging the Canada-U.S. safe third country agreement. As you know, and as Mr. Coderre knows, in the act right now there's a clear provision saying that you can only designate a country as safe if.... Well, the minister can designate a country that complies with article 33 of the refugee convention, article 3 of the convention against torture, and in coming to that position, the minister needs to take account of the human rights background, the asylum system, and so on.
So we took that case to court and gathered a great deal of evidence, specifically about the U.S. asylum system. Now, of course, the U.S. asylum system is generally a decent one, but does it fully comply all the time with its international legal obligations? Certainly under Mr. Bush, no, it didn't.
We brought that case before the Federal Court. The Federal Court found clearly and unequivocally that the U.S. does not comply with article 3 of CAT, article 33 of the refugee convention. So under those two criteria in the act, the court found that, no, that was a mistake; the designation was inappropriate because the minister said it complies when it doesn't actually.
That case went to the Court of Appeal, and the Court of Appeal found very clearly that the court has no role, essentially, in assessing the decision of the minister with respect to the application of the criteria for designation.
So that's our worry. You may put very decent-sounding criteria into this act about what is a safe country and what isn't. It will look good. It will get passed in Parliament and we will end up with countries being designated for political reasons, for all sorts of reasons, and there will be no review.
:
There are a few things. The fact that we don't have a RAD now, eight years after it was passed, is a problem. It's been a problem for the last eight years, and it's been a problem before we even got the RAD.
Lack of an appeal continues to be an issue. The fact that this bill proposes to have it there for most is great, but the justification for denying access to a full appeal on the basis of a presumption of safety in a country, in our submission, is unfair. And it's unfair for a couple of reasons, of course. There is a combination of issues. There are multiple changes, and they all affect each other in this bill, particularly if we do have a situation where you've got an eight-day interview and a 60-day hearing.
Right now it's before a civil servant. We have no idea who that civil servant is going to be. Right now, the way the bill is drafted, as Mr. Showler and others have talked about, it could be a current PRRA officer, an enforcement officer, or anybody.
So if you're going to have civil servants who potentially work for the minister, or who actually do work for the minister, making that first decision, and they're making decisions about people their boss, the minister, has said are coming from countries that are safe, they are exactly the people who need an appeal to somebody who's impartial and protected from the minister, to a Governor in Council term-length appointee.
In my submission, it's backwards almost. That, again, is one of the problems we have with that proposal.
:
Anyway, I'm going to share my time down the line.
I really do enjoy it when lawyers come to the committee, because they always seem to be so against anything that would limit their ability to bill—
Voices: Oh, oh!
Mr. Paul Calandra: —and allow this to go on basically forever.
I fail to understand, as a layperson, how your meeting somebody within eight days and getting their story and understanding their initial response for why they came to Canada, and then getting a copy of that, as somebody who might be representing them, so you can actually go through it, wouldn't actually help you prepare for a hearing that is 60 days away. Not only does it help you to prepare, because you have initial information you can then go by and on which you can then ask them even more pertinent questions when you actually meet them, but it also strikes me that after those 60 days there will also be the opportunity for these people—who are very deserving—to actually go on with their lives, as opposed to being put through the mill by lawyers and government.
I wonder if lawyers would still feel the same way if we put something in there that said after 25 or 30 hours you can't bill any longer.
:
Thank you so much, Ms. Taylor.
Mr. Brouwer, thank you, and Ms. Wong as well. Mr. Sorrento from St. Catharines, and Mr. Abu-Zinid, thank you so much for your input.
As you know, we seek input from individuals who have a lot to offer, and we learn a great deal. As a matter of fact, because of the interest this committee has in listening to individuals such as you, I have sought and found agreement from all parties on both sides that notwithstanding the present work plan of the committee, Tuesday, May 25, from 18:00 to 21:00; Thursday, May 27, from 15:30 to 17:30; Thursday, May 27, from 18:00 to 21:00; and Monday, May 31, from 18:00 to 21:00 will be designated days to hold hearings. That's just so we know that.
This is the only item that we found agreement on, and we will not be discussing anything further. That is also because of the respect we have for the next witnesses, who are already here.
Thank you so much.
:
Mr. Chairman, ladies and gentlemen, first I want to thank you for your invitation. My name is Catherine Dagenais, and I am a lawyer with the research and legislation service of the Barreau du Québec. The Barreau du Québec has slightly more than 23,000 members. It main mandate is to protect the public. It carries out that mandate by ensuring, in particular, compliance with the rule of law, the continued separation of powers, the promotion of equality for everyone before the law and protecting the often precarious balance between citizens' rights and the powers of the state.
As a lawyer in the research and legislation service of the Barreau du Québec, I coordinate the business of the advisory committee on immigration and citizenship law of the Barreau du Québec, which consists of some 10 immigration and citizenship law practitioners. The committee analyses various immigration issues and has been given the mandate to examine Bill .
I am here today with Ms. France Houle, member of the advisory committee on immigration and citizenship law of the Barreau du Québec. Ms. Houle was admitted to the Barreau du Québec in 1989. She is a professor at the law faculty of the Université de Montréal, where she teaches administrative and immigration law.
The Barreau du Québec's comments today concern Bill . I will briefly outline the Barreau du Québec's position, which was developed in our letter of May 7. My colleague will be able to add any relevant information and answer your questions.
The Barreau du Québec is pleased with the significant effort that is being made in an attempt to find a balance between faster and equitable treatment of refugees. It is pleased with the implementation of an appeal mechanism for refugees. The Barreau du Québec had been calling for a genuine appeal mechanism for some time. This Refugee Appeal Division will have the advantage of developing expertise and a body of case law. However, some factors must be reviewed in order to prevent harmful effects on a vulnerable population.
The Barreau du Québec is particularly concerned about certain time periods proposed in this bill. The Barreau du Québec therefore proposes four weeks instead of eight days for the information gathering process. It also suggests a period of four months before the first hearing in the Refugee Protection Division. Refugees must be allowed time to find competent lawyers, to obtain evidence from their country of origin and to approach legal aid.
A competent lawyer handling the case will facilitate the processing of that case. These lawyers need time to prepare, to provide good advice and to represent their clients. Adequate preparation is therefore necessary from the outset. In addition, if there are deficiencies in the first hearing, the entire system risks going off the rails. The IRB's resources must therefore be cautiously used, avoiding numerous postponements.
According to the bill, first-level decisions would be made by officials. The Barreau du Quebec believes that the positions should be offered to everyone, both members of the public and people working in the various departments. Care must also be taken to ensure the independence and impartiality of the proposed first-line decision-makers.
Another major concern for the Barreau du Québec is the designated countries of origin and the possibility that the minister may designate countries whose nationals would not have access to appeal. The country-related criterion is shocking with regard to access to justice and equality for everyone before the law. The Barreau du Québec is opposed to this two-level appeal system.
Furthermore, if this solution must be considered, we must at the very least ensure that there are guarantees and a fair and transparent process for designating those countries. The committee must include independent experts with considerable expertise in human rights and humanitarian law, as well as public representatives.
In addition, and this point is important, the criteria shaping this process of designating safe countries should be clearly set out in a statutory instrument, not by order or regulation. These criteria should also be subject to comment.
As regards the appeal mechanism, the Barreau du Québec notes that appointments to the Refugee Appeal Division would be made by cabinet. The Barreau du Québec repeats that all political appointments must be avoided and that emphasis should be on competence in order for the proposed reform to work. In its letter, it suggests an appointment process that we invite you to consider. I would now ask Ms. Houle to talk about the suggested process.
:
At the federal level, there is no selection or recruitment process for the members of administrative tribunals. No reform has been conducted in this area within the federal government. There is one in Quebec, under the Act respecting administrative justice, which was passed in 1996. For 15 years now, there has been a member selection and recruitment process in Quebec for the four major administrative tribunals, the TAQ, the Régie du logement, the Commission des relations du travail and the Commission des lésions professionnelles. None of those tribunals is as big in terms of the number of board members appointed as the number of cases heard by these agencies.
What is important to consider is that administrative justice is now as important as, if not more than, civil justice and criminal justice in terms of the number of cases settled every year. The Immigration and Refugee Board of Canada very definitely falls into this class of administrative tribunals, which are purely jurisdictional. In this class of genuine administrative tribunals, the Supreme Court of Canada has evolved in its case law, which concerns the guarantee of independence of those organizations. One of the points on which the court insists, particularly in the Ell and Bell cases, is precisely the recruitment and selection of members. The court has not yet rendered a clear decision on the subject, but there are trends, and the federal government will eventually have to take note of them, in particular because, in the Bell affair, it was a federal administrative tribunal that was at issue.
The procedure we are proposing is essentially the one that exists under the Act respecting administrative justice.
There should therefore first be a public notice of call for applications to state the qualifications and skills required of candidates.
Second, a committee should be formed—including one member of government, the chair of the IRB and a lawyer from the bar association, preferably that of the province in which the candidate is appointed—which would be responsible for examining the files of candidates and selecting files for interview.
Following the interview process, the committee would be asked to prepare a list of names of individuals suitable to be appointed as IRB board members, and the cabinet would have to select individuals to be appointed board members from that list. Candidates would no longer be stricken from the list; they would have to stay there.
Lastly, terms should be fixed. Terms would stop being limited in federal law to a renewable five-year term. If a member's term is not renewed at the end of the five-year period, that member would have to be told why, and would have to be given a chance to state his or her point of view on the reasons why the term was not renewed.
That, in a nutshell, is the procedure we are proposing.
I'm going to hand over the floor.
:
Thank you. My name is Geraldine Sadoway, and Rathika Vasavithasan is with me.
I'm a staff lawyer at Parkdale Community Legal Services. It is a 40-year-old clinic in Toronto that has produced some of the major lights in immigration and refugee law. In particular, James Hathaway was once one of our students at Parkdale Community Legal Services.
Rathika is a law student, but prior to that she was involved in working with immigrant communities. She's also a representative of the Tamil community that has been displaced. Her family was part of the government-selected refugee program, but she is part of a community that includes many people who came to Canada as refugees and claimed refugee status here.
I'm representing Parkdale, but I'm also representing the many workers in the community legal clinics in Ontario and other parts of the country who work on behalf of perhaps the most vulnerable immigrants and refugees who fall through the cracks of our current system. We deal with people who are often very deeply traumatized; people who have mental health conditions; women, children, elderly people; and people who have survived torture and other types of other terrible, traumatic experiences.
Law students in our program, such as Rathika, usually come with a very rich experience working with refugees and immigrants.
We're presenting today on the changes to section 25, the humanitarian and compassionate section of the act. Those are proposed subsections 25(1.1), 25(1.2), and 25(1.3). We are arguing that they should simply be deleted from the bill. These humanitarian sections will drastically affect the communities we serve.
They propose that a person will have to choose between making a refugee claim or filing a humanitarian application. In other words, if you make a refugee claim, you're not eligible to file a humanitarian application while your refugee claim is pending, and if refused, for one year after.
Moreover, proposed subsection 25(1.3) of Bill provides that if you do make a refugee claim, it is refused, and you manage to make a humanitarian application after one year, you can't base your humanitarian application on any of the dangers or risks you raised in your refugee claim. Furthermore, this section says that no hardship or risk factors can be raised at all in humanitarian applications if those same factors could have been the basis of a refugee claim.
This is the most dramatic limitation of ministerial power we've had since at least the 1950s. That's the act I can remember having reviewed a long time ago. But certainly in the 1977 and subsequent acts, we always had ministerial discretion to consider humanitarian and compassionate grounds, and that is now going to exclude factors that could be the basis of a refugee claim.
First of all, there's no efficiency in these changes, because with the current process we consider humanitarian claims in a different stream. They are dealt with by immigration officers, not by the refugee board. There's a paper application, not an in-person application. And the processing of such a claim does not stop removal. So there's no benefit. There's no efficiency in saying we're going to get rid of the humanitarian application.
If you have a pending humanitarian claim and you've been refused refugee status, you can still be removed from Canada. I know that; as a lawyer I've dealt with those cases.
You can only stop removal if either the immigration officer agrees to defer removal or you get a Federal Court judge to recognize that you would suffer irreparable harm if you are removed. We have done that as well.
What we're doing is setting out an impossibly difficult situation for the person coming to Canada who has left a problem in their home country. It will be very difficult to advise those people.
I'd like Rathika to hold up now for the camera a little image we made, a little Venn diagram. What you have is a large grey area of what constitutes a well-founded fear of persecution, which is the test for convention refugee, and what does not meet that stringent test but does constitute very serious hardship. So getting accepted as a refugee results in much stronger protection—non-refoulement. You can't be returned to the country where you fear persecution.
Accepted refugees and their family members are granted exemptions from certain inadmissibilities, such as financial and medical. But deciding whether someone should be found to be a refugee is not black and white. It's not an issue where you're a refugee or you're not a refugee. There are difficult decisions to be made, and that grey area is where a lot of the cases would fall.
Some cases that would be accepted as refugees by one board member would not be accepted by another, but they could be accepted on humanitarian grounds. We've seen many examples of this. I've set out examples in our brief of people who even the refugee board said at the hearing that what they're facing is very severe discrimination and it's a terrible experience they've lived through, and that's not enough to find them to be a refugee, but they have a strong humanitarian case. We have taken those cases and filed a humanitarian application after the refused refugee claim and quoted from the board.
The board can't decide on a humanitarian case. They can't say, okay, but I'm going to accept you on humanitarian grounds. But the immigration officer can look at what the board saw and that they found the person credible and accept them. Now we're just going to throw that away. We're going to say that all those people who have very strong humanitarian cases will either win the refugee claim or they're gone. You can't base your humanitarian case on the very factors the board said were strong humanitarian cases.
:
Hence the sweater. Yes, I'm in Calgary. I'm conscious of the fact that there are probably some westerners out there, people who'd like to cheer the Canucks tonight, so we'll try not to drag it out.
My name is Michael Greene. I'm a practising immigration lawyer in Calgary. I have been practising law since 1984 and immigration law since 1987. I work in a firm where we practise only immigration law. I do not, in fact, do refugee cases any longer--there are other lawyers in my firm who do them--but I've been working with this system since it started in 1989, so I'm reasonably familiar with how it works now.
I've been active in the Canadian Bar Association for 20 years. I am a former national chair. I was the national chair at the time we were developing IRPA, so I know a little bit about the legislative process and how that works. And I've appeared before this committee and other committees numerous times.
I've been invited to express my opinions as an individual, and that's what I'll do. I'm not representing any organization, although I do share concerns with many other groups and organizations and individuals who are speaking before you.
I have concerns about the way the system has been working. I think it undermines public confidence in our overall immigration and refugee laws and processes. It's fraught with delays. The slow process attracts non-genuine claimants, who can sometimes extend their stays for years, as we all know. And for people who do have legitimate claims, often the woes they've suffered in their lives are compounded by the extended time the process takes.
The high influx of claims from some countries, especially when their cases are seen as being less compelling than others, results in visa imposition. In fact, that happens all the time when there is a high influx. That makes it difficult for countries, as we saw with Mexico. It's difficult for the European community. There are definitely problems that arise when we use the visa method to try to control the refugee determination process.
With all these concerns, steps to speed up the process are certainly very welcome. I think most Canadians sympathize with the minister's stated intention of streamlining the system or making it so that we can recognize genuine refugees and actually deter people who have actually no basis for making a claim.
Having said that, I have a lot of concerns about the solutions being proposed. First, I'd like to review the fact that many of the things that can be done to speed up the process are non-legislative solutions. Some have been proposed in conjunction with the current bill, and others could be added. The limited resources at both CIC and the CBSA are the cause of much of the delay in the system. The CIC is stretched to the max. They can't get to their H and C claims, and they can't get to their PRRA decisions. The result is that often there is an 18-month or longer delay before they even initiate a PRRA. Then there is quite an extensive delay in deciding it. It's not because it takes a long time to process an application; it's because it sits in a queue.
It's the same thing with removal. I'm quite close with some of the people here who are in removals. I've developed friendships over the years. And I know they feel very stressed because they have to set priorities and aren't able to get around to doing the different things they should be doing. Sometimes these removal cases languish for months, if not years, because of criminals or greater priorities or whatever. So putting more resources into the system, which the minister has proposed, is a darned good idea. It doesn't require a change in the law.
The other thing is that our board can work more efficiently. We saw during the chairmanship of Jean-Guy Fleury that he had processing times on refugee claims down to six months. That was because of a very concerted effort and the use of new procedures. But also, everybody buckled down and worked really hard. The system worked really well. Unfortunately, reappointments were not made, and new appointments were not made to fill those spots. Things got a little out of control at the same time as there was quite a high volume coming in.
Much of the delay could be eliminated just by attending to properly making sure that we've resourced our board and have resourced the agencies that deal with the situation.
One of the things I didn't say is that I teach the immigration law course at the Faculty of Law here in Calgary. We talk about processes a lot and how they work. We talk about safeguards and due process and where it exists and where it doesn't.
In terms of what's proposed, I would just like to comment that this proposed two-step determination process is very welcome. It's been called for, for a long time. There really isn't a good backstop now in the case of a bad decision, and we get bad decisions. Humans make mistakes. Sometimes people have poor representation. Different things happen. The two-step system will, I think, greatly improve the quality of decision-making.
I would like to endorse the proposals of the Barreau du Québec with respect to political and non-political appointments. I think that's been a chronic weakness since this board started in 1989. We've had some bad appointments, and that makes for bad decisions. There's no need for it; we could improve the quality.
The two-stage process I think would justify restrictions on the PRRA, which has been a very unsatisfactory appeal process. With a success rate of around 2%, it's a colossal waste of money. The money would be much better spent on the RAD, where you have a more effective appeal process. I think if we have the two-step process we can justify cutting back on access to the PRRA. I don't see the justification for cutting access to the humanitarian and compassionate, and I'll talk about that later.
The idea of mandated processing times in the legislation is attractive, in that regardless of who the government is, if they keep to the mandated times they'll adequately resource the board. The problem is--and this is where I get into some of my serious concerns about the legislation--the proposed mandated times are just not workable. The eight days and the 60 days...you can't function in that environment. For instance, it takes so long to get legal aid to appoint counsel right now that you can use up most of that time before you've even met your client.
This would be unthinkable--absolutely unacceptable--in the civil law and criminal law contexts for the government to mandate that your civil lawsuit must be heard within 60 days. But we're proposing doing it for people whose very lives are at stake, where they're facing torture, persecution, and possibly even death. While the idea of mandated times is attractive, the proposed times need some work. I don't think it works. Every lawyer I've talked to in this field says that's not workable. Even my partner, who's a very senior lawyer in this area, says he doesn't think he'd want to practise in that area because he doesn't think it would be true justice.
There are concerns as well about the minister's list. Again, I think it's been expressed by many groups, and I won't rehash it too much: the danger is of politicization in the process.
We have a current minister who is well-intentioned, and I remember when we brought in IRPA that we had a well-intentioned minister. There were a couple of provisions, namely denying the right of appeal to persons with criminal convictions, and the minister said, don't worry, I will use my discretion to make sure that good decisions are made to let those people stay in deserving cases. Well, she didn't stay as minister too long, and we've seen a succession of ministers where there really hasn't been that discretion exercised.
I don't like the broad powers given to ministers, and I think there should be some criteria if we're going to have a list at all. As well, I think there has to be a real look at the consequences. I would be much more supportive of the consequences of being from a listed country be that you have a hyper-expedited process, that your claim is dealt with really quickly. That would deter non-genuine claimants from coming if they knew they were going to be out of here pretty fast, that they couldn't languish in the system and milk it for all it's worth.
I'm very much opposed to the denial of access to the fail-safes, to the backstops that exist in the appeal process and the humanitarian process. The humanitarian and compassionate grounds--and this doesn't come from me originally--are the grease that makes the system work. Often we have arbitrary or hard and fixed rules to fit into a category, and it's the humanitarian grounds that catch the people who have compelling reasons to be here but don't quite fit within one of the narrow confines of the accepted classes. It's been a major feature of our system, for as long as I know--and I think for a lot longer than I know--and I teach immigration history. I would hate to see it eroded away here. I think it's a fundamental part of our system.
It's tempting to--
:
That's the problem, in fact.
By countries of origin, we're not specifically stating exactly what we're talking about. In itself, the act poses arbitrary problems. In addition, the criteria will be set by regulation, whereas, in the past 20 years, it has been a legislative policy, particularly in the federal government, that criteria stripping people of rights are set out in the act not in regulations.
Furthermore, I just want to take two seconds to say that, as a result of the process of shaping regulations in Canadian law, a little consultation is now possible, particularly under the Cabinet Directive on Streamlining Regulation. However, from the moment there is an amendment to regulations, consultation becomes less and less important.
So, ultimately, the government could make nice regulations in order to please everyone at the outset and, little by little, remove important elements from those regulations. That poses a problem. Simply with regard to legislative policy, the criteria should be in the act; and the process in the regulations.