CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, October 23, 1997

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[English]

The Chairman (Mr. Stan Dromisky, Thunder Bay—Atikokan, Lib.)): The meeting is called to order.

We're very fortunate today to have four members from the Immigration and Refugee Board, who will make presentations to us. I'm sure there are going to be a great number of questions presented by members of the committee today. It's a very thought-provoking and interesting area, disturbing to some, and I hope you're going to be ready for the kind of barrage of questions you're going to receive.

Today, in the process, I'm going to start with the official opposition, but instead of going in order right around the circle, I'm going to bounce back and forth so we get a variety of concerns and questions that could be raised.

Mr. Thibault, I understand you're going to be the initiator of the whole presentation, and I hope you will introduce your colleagues.

Mr. Paul Thibault (Executive Director, Immigration and Refugee Board): Thank you, Mr. Chairman and hon. members.

[Translation]

My name is Paul Thibault et I am an Executive Director of the IRB. With me today is Ms. Benimadhu, Director General of the Management Services Branch, who was previously Director General of the Adjudication Division.

[English]

With me also are Mrs. Evelyn Levine, who is the director general of policy, planning and research; and Mr. Philip Palmer, who is our general counsel, legal services.

I've been the executive director for approximately five months now. I would like to share with you some initial comments I have after those five months, and then we have a two-stage deck for you that will be presented on the situation. Then, of course, we will be happy to answer your questions afterwards.

My remarks will just focus on some of the elements in the environment, some observations that have come to me after a few months in the job. The first is, evidently, the complexity and the impact of the environment on the IRB.

First and foremost is the whole issue of global migration and its general unpredictability, and the fact that this can result in numerous types of pressures, not just on Canada but on various western countries. A great number of these pressures are totally unpredictable. We have a classic example of the impact of a television program in the Czech Republic on the local population there and the impact it has had on our system.

[Translation]

As regards procedures, we have a number of partners who can all influence our activities. We do not control every stage or every input used in the long series of activities leading to a decision by the IRB. That is true for every country in the world, in that we are all dependent on the countries of origin for documentation, for example, or as regards the validity of a claim. In Canada, we also depend on the Department of Citizenship and Immigration, which sends claimants to us. As regards the length of a particular process, we are also influenced by lawyers and consultants representing claimants.

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Furthermore, provinces providing social benefits and legal aid in various forms may have an influence on the length of our hearings and the way they are held.

Lastly, we are influenced by individuals appearing before us. Some arise with full documentation; others have no documentation and come from a country which, in fact, no longer exists. That is the case, for example, with Somalia where, if the individual concerned does not have documentation, you cannot go and obtain it.

All of this has an impact in terms of information, procedures, hearings, the number and backlog of cases to be processed, removal decisions and other issues.

At the present time we are trying to strengthen our horizontal structures and improve cooperation with our partners. We have an agreement with the Department to improve portfolio management. We have advisory committees with representatives of provincial bars. We have made contributions to the advisory group reviewing the Immigration Act, which should be presenting its report at the end of December. We are trying, for example, to improve cooperation with the Department of Justice and other stakeholders.

Obviously, there is a delicate balance between the Canadian tradition of openness and concerns expressed about possible abuses and the impact of such abuses, both on the system and the cost of social services.

Concerns are also being expressed about safety, because sometimes criminals claim refugee status. We do not consider such abuses to be systematic, but we must address such concerns. These are legitimate concerns to which we must provide answers.

With the information we have, we will continue to ensure the integrity of the system. But I must tell you that our task is not an easy one. It is complex, not easy.

[English]

By law, Canada's immigration and refugee program includes the concept of spontaneous arrivals, immigration requests and refugee claims that are submitted voluntarily without a selection process—essentially, people who arrive and claim refugee status. To decide on these, the country has adopted a judicial system and legislation that requires a case by case review and referrals by the department, which, as I mentioned before, controls the front door of the refugee determination process.

To give you an example, 42,759 cases were referred to the board in 1996-97. Each case must be decided on its own merits. There's no blanket approach to claimants from specific countries or groups. In a sense, how each individual claim is examined is perhaps one of the best guarantees that abuse is limited, as each case must be systematically examined.

Decisions are based on information from the claimant appellant, from countries of origin, from international sources and from our own information and research services from the department. More and more information is available, such as country conditions, but often the weakness is in the claimant's specific information, when someone arrives without any document and very little is known about the applicant. By definition, in a number of these countries of origin it's almost impossible to get any demonstrable, tangible proof of who the person claims to be.

In a sense, a lot of the system has changed, I would think that over the past, say, 30.... We've always taken refugees, but 10 to 15 years ago, perhaps the identity of the person was less in question that what the treatment accorded to that individual was, whether it was discrimination versus persecution. But now a lot of time is spent on determining if the person is who he says he is.

Those few remarks, then, are an introduction. Let me reassure you that it is our intention, within the constraints of the legislation we have, to work within these challenges and to deal with these challenges within the framework we have.

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It is true the environment is unpredictable and it has the potential to force us to change priorities quite rapidly in response to sudden events. We recognize we have to make progress in improving processing times and providing decisions more quickly. We recognize this as a major challenge. We are determined to try to meet these.

With those few introductory remarks I would like to turn to Mr. Palmer, who will brief you on the structure and organization of the IRB.

Mr. Philip Palmer (General Counsel, Immigration and Refugee Board): Thank you very much, Mr. Chairman, hon. members.

[Translation]

I will continue now primarily in English, but please do not hesitate to ask me any question you may have in French. I think it should all be very clear.

[English]

First a word about our mission. The mission of the Immigration and Refugee Board is, on behalf of Canadians, to make well-reasoned decisions on immigration matters efficiently, fairly, and in accordance with the law. We make over 40,000 decisions a year.

The board is composed of three decision-making divisions: the convention refugee determination division, the appeal division, and the adjudication division. The IRB is the largest administrative tribunal in Canada. It is composed of the board and other decision makers of the three divisions. At present the CRDD is composed of 162 members. The IAD has 23 members, 30 maximum. At present the adjudication division has 34 adjudicators and its operations are supported by 600 staff, working in offices throughout the country. We have our principal offices in Montreal, Toronto, and Vancouver, smaller offices in Ottawa and Calgary, and we serve, on an itinerant basis, most other parts of the country, including Newfoundland, the Atlantic provinces, and the remaining portions of the prairies.

First of all, about the refugee division, which is our headline grabber in most cases, its mission is to hear and determine refugee claims in accordance with the law.

I think it's important to stop on that point for a moment, because it's not always clear and it's one of the contrasts that can be made between our system and others. In the first instance the Canadian system is based on a quasi-judicial decision about a refugee claim. The initial decision is not made by an administrative officer. It's not made by an immigration department official. Almost uniquely in the world, the first decision on a refugee claim is made by an independent decision-maker who is answerable only to the courts, not to a minister, not to a government official, for the decisions he or she makes.

I'll run quickly through the process of claims.

Persons arrive in Canada and are entitled to make a claim on Canadian soil. It's determined by the Department of Citizenship and Immigration whether they are eligible to be referred to the board. Eligibility is largely based on a decision as to whether the claimant either already has status in another country or has some indications of either serious criminality or commission of war crimes or crimes against humanity. On the assumption the candidate has not been determined to be one of those ineligible categories, they are referred to the board. Indeed, 99.95% of people who come to Canada and claim refugee status are referred to the board. In those cases, we must make a determination as to whether the persons do or do not meet the convention refugee definition.

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Our first job is to screen the client. What we're looking at here is basically how we'll process the claim. We have three sorts of headings to indicate how they're treated.

Priority processing would go to a person who has been detained or is actually on a hold of some kind and is therefore deprived of his liberty, or to other categories of persons. A good example is unaccompanied children. Those we try to process on a priority basis in order to make sure they get heard quickly. They can then be dealt with in the appropriate fashion by the other responsible agents of government in Canada.

Our expedited process is one that allows the determination without a full hearing. There, you're basically looking at persons who come from countries where there is a high likelihood that the persons are refugees. They come from groups that are known to have been targeted and are known to have been victims in the past, and from which we already have a large pool of accepted cases. At the same time, they're screened to ensure there is nothing indicating that these persons might themselves have been criminals or were involved in war crimes or other matters that would require, at the minimum, a full hearing into the claim.

Last, there is the full hearing process, which is our regular and typical process. What I'll describe to you hereafter is that ordinary hearing process.

Typically, after the screening process there will be some kind of pre-hearing conference. It may not be a formal conference, but there they are looking at such things as the nature of the evidence that is going to be adduced and at the issues that are involved in the hearing. The objectives are to limit the amount of time it takes to process the claim, and to make sure the research documentation is presented early enough so that matters can be dealt with expeditiously and the claim determined quickly when we get to the hearing.

It is perhaps worth noting that at that same stage, our members are divided into geographically specialized teams. We do this so that the members develop expertise in country conditions and can therefore help. They know the background facts, the histories, the civil rights records of the various countries, and that assists immensely in terms of actually hearing the claims and deciding them quickly.

The nature of our process is not unique in the world, but almost unique in our judicial system is the fact that the refugee status determination is non-adversarial. This simply means there is no state interest and the state does not typically oppose a person's claim to refugee status. Really, we model this on the idea that the board is conducting an inquiry into the claimant's status in terms of whether or not they meet the refugee definition.

The minister is not ordinarily present or represented at our hearings. In fact, the minister is only represented in about 2% of all CRDD hearings. The exception to this question of the non-adversarial nature of our hearings arises when the minister has indeed intervened and is represented either by an appeals officer, by an employee of the department, or by a representative of the Department of Justice on the minister's behalf. These normally involve cases in which an issue of exclusion has arisen, which as I say is in roughly 2% of the cases.

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The hearing, as we say, is a quasi-judicial one, and there are reasons for this.

The nature of the rights involved are very grave. The Supreme Court of Canada has decided that the refugees who arrive in Canada are entitled to the benefit of the provisions of the Charter of Rights and Freedoms and that a negative determination can have the effect of placing at risk their life, liberty and the security of their person, something to which they cannot be deprived under our Constitution without a hearing before an independent tribunal. That is the underlying legal rationale for the existence of the Immigration and Refugee Board and the way in which Canada has crafted its regime.

Before our panels the claimant has the right to be represented by counsel, whether it's legal counsel or a consultant, and the claimant has a right to an interpreter. The interpreters are provided by the board at the expense of the board.

The refugee division proceedings are, as a general proposition, conducted in closed hearings, and the United Nations High Commissioner for Refugees is entitled to be present at all refugee hearings.

Our claims are heard before two-member panels. This is important because our statutory framework works in the following way. In the event the two members do not agree on their decision, then in the event that one member says the person is a refugee and one member says the person is not, our legislation provides that the person is determined to be a refugee.

The claimant has the right to present evidence, and the right to question witnesses and make representation. I think it is important to say that this is not just a nugatory right and an illusory right, it's a full right. And it's guaranteed as well by the fact that we make full disclosure to the claimant of all information we have relevant to the claim, whether it's specific information about the claim or whether it is general information on country conditions and human rights conditions in the country of origin.

The minister has the right to be present at all of our hearings and to present evidence. And that is of course, I think, a critical protection for the interests of the Canadian public.

Exclusion issues: This is something you probably heard something about; it's in the newspapers from time to time. The issue here is exclusion from the refugee definition. The refugee definition does not extend to certain classes of people. They are those who already have protection in another country—what we call article 1(e) of the convention—and secondly, claimants who do not deserve protection. These are people who have committed war crimes, crimes against humanity, or acts contrary to the purposes and principles of the United Nations.

It should be said that the board has been a pioneer in exploring the limits, if you will, of the exclusion clauses.

Perhaps a corollary to the generosity of the Canadian system is that it is very tough on people who they suspect of being involved in human rights abuses in particular. They have, for instance, crafted the exclusion of drug traffickers and people who otherwise could be accepted as refugees.

The refugee definition in Canada is something that is much debated. There are certainly those who think that the definition has been broadened in Canada. I cannot say for certain that's true. I can say that the Canadian courts have given an actual, real, present, and contemporary meaning to the convention and have explored its basis in human rights law in great depth and in a way that's admired throughout the western judicial world.

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Basically, there are three elements here that have shaped the approach to the refugee definition. The first, of course, is the Canadian Charter of Rights and Freedoms, which largely incorporates and represents a great deal of international law in the human rights field. It has derived much of it from international law.

Second, there are Federal Court and Supreme Court of Canada decisions, which are binding on the board.

Third, there's the consideration within Canadian law that we must be in accord with international law, whether this means international treaties or United Nations guidelines, such as the refugee handbook of the UNHCR.

Just before moving to the appeal division, it's probably wise to note that the board's negative decisions must be written and communicated to the claimants. The board has a singular push on to both shorten written reasons that are delivered and, second, to deliver more reasons from the bench in order to expedite decisions and to give claimants certainty with respect to their status at the earliest possible time.

The second division is the appeal division. It hears appeals by persons who are subject to removal orders that have been issued by adjudication division, or appeals by the minister from refusals to give removal orders. Those are usually cases involving criminality.

Finally, they hear appeals against refusals of sponsorships of relatives. These are permanent residents who have the right otherwise to sponsor relatives but who have had that sponsorship refused. I know many of you around this table will already have heard from constituents who have cases before our divisions and have had refusals of sponsorships of their relatives.

In the appeal division, the proceedings are adversarial and in public. It's a requirement of the law that they be in public.

The adjudication division's mandate is to conduct inquiries. People are called to inquiries initiated by the Minister of Citizenship and Immigration. These are, for instance, persons who are alleged to be in Canada illegally. They have overstayed a visitor or student visa, or they're working contrary to the conditions on which they were admitted to Canada. So if they were admitted as a student, and now they're working and earning an income in Canada, they might be subject then to an inquiry and eventual removal.

The second element of the adjudication division's mandate is to conduct reviews of detentions. These are people who have been placed in what is called detention prior to the hearing with respect to their removal from Canada. This is somebody who is unlikely to appear for a hearing. In other cases, it could be a person who might pose a danger to the Canadian public.

Proceedings before the adjudication division are, again, adversarial and are held in public. It should be said with respect to both of those divisions that any person appearing before us is entitled to appear with counsel, who can participate fully in the hearing.

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Finally, it's wise to keep in mind that any decision made by the IRB may be reviewed by any party to those proceedings, whether it be the claimant or appellant who's before us, or whether it be the minister, subject however to the fact that in all appeals of immigration decisions the party must obtain leave from the Federal Court before the court will entertain that appeal.

Thank you. That's my presentation.

Ms. Evelyn Levine (Director General, Policy, Planning and Research Branch, Immigration and Refugee Board): Mr. Chairman, I will give a picture of what is happening in the immigration board. I'll share with you a picture of what the major source countries are, our commitments to Parliament, a brief status report on our performance and where we go from here.

I will start with the next slide, talking about the refugee determination process.

Here's a picture of the major source countries. On the left-hand side you see people from the top ten countries making claims in 1996-97. On the right-hand side you see the first quarter of this fiscal year. Basically the picture is quite stable. There are some countries that come in and out of the given snapshot. If we provided a snapshot of today, it would be slightly different, but it's basically the same.

You will notice, for example, that in 1996-97 Chile represented 7%, whereas in 1997-98 it's not there.

Last year we had about 23,500-and-some claims and this year we're forecasting 22,000.

On the next slide, I wanted to show you the commitments that we made to Parliament on behalf of the convention refugee division in the plans and priorities document that was tabled in February 1997.

At that time we committed to reducing our pending caseload to 26,000 claims by the end of the current fiscal year and reducing the average processing time for refugee claims to eight months by a year from now, September 1998. We did that with the understanding that there were three caveats or conditions that we would need in order to achieve those results. One was legislation making single member hearings the norm; the second was that the member complement or the complement of decision makers in the division be increased; and the third was that we retain a critical mass of experienced members or decision-makers.

So the question is, how are we doing vis-à-vis these commitments?

On the next slide you will see the claims pending, our inventory. You'll see that in September 1996 it peaked at 30,722 and it has come down since then. The trend is the appropriate one and we certainly expect to meet the target that we committed to, 26,000, by the end of the fiscal year.

The next slide shows a picture of our average processing time. We all recognize that the trend is in the wrong direction. It's going up. We have certainly committed to it coming down, and in a little while I will explain some of the initiatives we're taking. But it's an important picture because it does portray our history.

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On the next slide we show you some of the reasons why the staircase seems to be going up. The processing times are still high, because the pending caseload grew very quickly in 1994-95 for the following two years because of a combination of high intake with sudden influxes. One was Chile. Mr. Thibault talked about the fact that we are reacting to our environment.

So the numbers have gone up, and the output has not been as high as we had planned or hoped. The average number of decision-makers since the beginning of 1996-97 was 160, and the required level in terms of the commitments we made is 182. As you all know, the single-member legislation was not passed, so we're operating for the most part, in the majority of cases, with two-member panels.

The next slide is our good news slide. It shows our output and the fact that we're eating into the mountain of cases we have. The dotted line represents the cases referred to us by the department. The mountain represents the cases finalized by us. If I may use the analogy of the deficit and the debt, you will notice that since June 1995 we no longer have a deficit and we are eating into our debt.

The next slide talks about the positive indicators that, as I said before, we are finalizing more claims than are being referred to us. Another positive indicator is that single-member hearings with the consent of claimant, which is possible under the current legislation, has gone up in the past two years from 9% to 23% in the first quarter of this fiscal year.

We also have instituted certain initiatives or good case management practices that certainly will have an impact in terms of making us more productive and having the processing time go down. As Mr. Thibault mentioned, we have geographically specialized case management teams. The development of expertise in that area means we will be able to process claims faster.

We're batching claims so that they can be dealt with in a faster way. We're also scheduling new intake of people to reduce the average processing times. We are focusing on oral decisions, again as a method to improve efficiency, and as Mr. Palmer talked about, shorter reason writings.

The next slide represents the outcome of our decisions. The yellow reflects the positive decisions. You can see that the trend certainly is that the positive decisions have been declining in the board from 62% three years ago to 40% in this quarter. The aqua line indicates the negative decisions. The pink is the withdrawn and abandoned cases. So that's a reflection of what's happened in terms of outcome.

On to the immigration and appeals division. Again, in the plans and priorities document we committed to reducing the caseload to 5,300 appeals by the end of 1997-98. Now we're just over 5,600, so we expect to meet that target. We also committed to reducing the average processing time to nine months. That is from receipt of record from the Department of Immigration by the end of 1999-2000. Currently we're at 11 months.

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Our two caveats were very similar in the sense of having a full complement of experienced members, and given that intake remains about the same at 3,200, that has been an accurate forecast. That's about where intake has remained, at 3,200 per year.

On the next slide you can again see that we are eating into the inventory of cases in the appeals division. In the last five quarters we have completed or finalized more cases than we received.

The next slide indicates the adjudication statistics and the scale or the thousands of decisions that are made for inquiries concluded or detention reviews. You can see that the workload has been declining. And I'm very happy to report that there is no pending inventory in the adjudication division.

We have talked about our challenges, our constraints and our commitments to improving our performance, and you might ask how we are going to get there.

Last summer senior management at the immigration board felt it was important to set the direction for all employees within the immigration board in order to achieve our objectives, so we articulated a vision that I think is important and that I thought I would share with you today.

Our vision is that we will excel in everything we do and we'll deal simply, quickly and fairly—and those are key words, to be taken all together—with everyone. Through innovation, we will be a leading-edge administrative tribunal and a creative partner in building the future of the Canadian immigration system.

We recognize that we can't get there through maintaining the status quo in terms of how we process cases, nor can we get there by asking people to do more. It's simply not enough. We must do it through innovation, obviously within the constraints of our system and our legislation, through better case management, through working with our partners, and through looking at other creative ways of doing our business.

I thank you for your attention, Mr. Chairman.

The Chairman: Thank you very much. Does that conclude the presentations?

Mr. Paul Thibault: Yes.

The Chairman: Now we will have the questions from members of the committee. We'll start with Mr. McNally.

Mr. Grant McNally (Dewdney—Alouette, Ref.): Thank you, Mr. Chair.

Thank you for your presentation. I appreciate your vision that you mentioned at the end and I know legislation has a lot to do with how that vision would be best implemented.

I have a few questions about the process. Talking about the IRB process being non-adversarial and that the minister's representative...I think someone mentioned that in only 2% of the hearings had a representative of the minister been there.

I think Canadians are voicing concerns. In my office I'm hearing concerns about individuals who would take advantage of Canada's good nature, of our willingness to accept people to our country. We know that Canada was built on immigration, yet there are abuses of our system that are quite obvious. Perhaps one of the ways this could be addressed is through this process.

You talked about all of the rights the refugees have as soon as they land in Canada and declare themselves to be refugee claimants and start the wheels and the process happening. They have the right to counsel and all of these rights, yet the government's representatives don't seem to be able to counteract information being given or just question what's being said.

If someone who's coming to our country is a war criminal or is even in this second group you mentioned, where a large number of people have been coming through the system from Bosnia, say, or from that area...how do we make sure someone doesn't slip through? If someone is in fact one of those types of people and is presenting information before a tribunal, we can't refute the claims being made. If the person is in fact a war criminal, what's to stop him from not telling the truth about his true background to a tribunal?

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One major concern is that whole process.

Another is the backlog that is then created. We look at the numbers being released today as roughly 30,000 as a target for the refugee range, and if there's a 44% acceptance, that means approximately 75,000 people are applying. Is that in the target ranges?

Ms. Evelyn Levine: In terms of referrals, we have forecasted that in this fiscal year we will have 22,000 referred to us. So it would be 40% of 22,000.

Mr. Grant McNally: But earlier it was mentioned that 44% of all claimants then are accepted.

Ms. Evelyn Levine: Right now it's 40%, so it would be—

Mr. Grant McNally: So are you saying that 40% of the 22,000 are accepted?

Ms. Evelyn Levine: Correct.

Mr. Grant McNally: I guess one of my major questions is that we have these people who are coming to our country and then claiming to be refugees and that backlog that is being created shuts out other refugees from other countries, who are then no longer able to apply to the system. I think you mentioned that there are roughly 22,000 people outside of the country who apply in other consulates.

Mr. Philip Palmer: Perhaps I can clarify that. The claims made outside of the country are made to visa posts abroad, to officers of Foreign Affairs who are deputized or to immigration officers in posts abroad.

Mr. Grant McNally: How many of those would there be?

Mr. Philip Palmer: I'm not able to say what their numbers are. We don't have any idea of that.

The number of claims in Canada has no influence on the number of claims that can be made. If more people came, they would be entitled to make their claims.

Mr. Grant McNally: I think it's a concern that there are a lot of people coming and claiming to be refugees who are in fact not refugees, and then there is the process of having them.... You talked about removal orders. How exactly does that come about for the people who are not deemed to be true refugees? What percentage of them are removed, and in what timeframe are they removed? We see trouble with deportation orders happening but not being carried out and criminal acts being perpetrated. There are a number of high-profile cases, especially on the west coast and across the country.

A concern I have that I'm getting from my constituents is this whole process and what we can do to streamline it. I know you talked about going to a one-member board. I'm wondering if the first line of defence might be back to the immigration point of entry landing time. Someone had mentioned earlier in their discussion that of everybody who lands, 99% then go through the hearing process. What timeframe does that take basically, from the time someone lands to the time they go through that whole IRB process before a decision is rendered, yea or nay?

Ms. Evelyn Levine: We measure from when we get the case, which is from the time they're referred to us.

Mr. Grant McNally: How about from the time someone lands? Let's say that I come from another country. I say that I'm a refugee. Before it's decided that yes, you are, or no, you're not, what kind of timeframe is there?

Ms. Evelyn Levine: They have a form to fill out and they're given 28 days to do so.

Mr. Grant McNally: So from the time they land to the time a decision is rendered by the IRB, what is that timeframe, on average? Do we have any record of that?

Ms. Evelyn Levine: I'd add a month to six weeks to our figure, because when they land they're given a form. They have 28 days to fill out what's called a PIF, a personal information form, to supply to us. Then there may be a reason for extension. So I would add a couple of months to ours, and right now we're at 14 months, so you're talking about 16 months.

Mr. Grant McNally: And that doesn't include the appeal processes on top of that, if they appeal the decision and it goes to an appellate decision?

Sorry, maybe I've exhausted my time.

The Chairman: Yes. Now we'll bounce over to the Liberal side. Who's first?

Ms. Raymonde Folco (Laval West, Lib.): I was a bit worried about the extent of time and I felt that the five minutes were—

The Chairman: Yes. The clerk is keeping time here, so you don't have to worry about time.

The Liberal side.

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An hon. member: Is it one at a time?

Ms. Sarmite Bulte (Parkdale—High Park, Lib.): Or is it two lawyers at the same time?

Mr. John McKay (Scarborough East, Lib.): Following up on Mr. McNally's questioning here with respect to the acceptance rates, I am looking at the plan that was announced today. There's a differentiation among government-sponsored and private-sponsored refugees. Is your acceptance rate of approximately 40%, 44%, or whatever the number might be, differentiated among the various categories of refugees? In other words, under the government-assisted category is your rate still 44% or is it higher or lower?

Mr. Philip Palmer: It doesn't include the assisted refugees. Those are determined solely by the Minister of Citizenship and Immigration.

Mr. John McKay: So in that category it's not a part of that.

Mr. Philip Palmer: It's not part of our determination process.

Mr. John McKay: Okay. Is that also true of privately sponsored?

Mr. Philip Palmer: Yes.

Mr. John McKay: Okay, so it's simply limited to the 14,000 to 18,000 landed in Canada.

Mr. Philip Palmer: It's limited to those who arrive on Canadian shores and make a claim.

Mr. John McKay: So that's the pool we deal with on an annual basis.

Mr. Philip Palmer: That's our pool.

Mr. John McKay: So the 44% applies to the 14,000 to 18,000. Is that correct?

Mr. Philip Palmer: It's 40% of roughly 22,000 people who are expected to claim refugee status on Canadian soil this year.

Mr. John McKay: Okay, that's an interesting point of clarification right there.

The second issue is on the definition of a refugee and our slide from people in need of protection into the realm of people who are victims of systemic discrimination. If this committee were to look at a made-in-Canada definition of a refugee what would it's legal limitations be, on arriving at that definition? Obviously there would be a charter limitation. If there were a charter limitation, would it be appropriate to consider landing zones wherein charter rights would not apply? Would that be a legally defensible position?

Mr. Paul Thibault: This is a very difficult question for us to deal with.

Mr. John McKay: We only ask the difficult.

Mr. Paul Thibault: It's very difficult for us to deal with, because we operate within the framework of the law as it exists. As you know, the minister has created an advisory group to report on changes to the legislation that will include all these issues. That advisory group is reporting to the minister at the end of December. We have a legislative framework, however it may be and however it is perceived, and our job is to deal with that framework and try to find out how we can make this system as effective as possible administratively.

Certainly there are many legislative changes Parliament could enact, but that's really not in our area in the sense that whatever Parliament decides to enact we'll deal with. But for us to comment in a broad sense on how we should deal with things that are outside our mandate...for example, people who claim refugee status when they land are not our responsibility. We only get those referred from the Department of Immigration. It's really difficult.

It's almost impossible for us to say if they were dealt with this way or that way we could do this or that. It really depends on the legislative framework the minister proposes and Parliament disposes during debate in the next stage that will be on you, I suspect, early in the new year. At this stage we're happy to answer any questions about the warts we have, but it's really difficult for us to deal with the warts we don't have yet.

The Chairman: Madame Guay.

[Translation]

Mrs. Monique Guay (Laurentides, BQ): Thank you for your presentation. My colleague referred to delays in processing claims. Who looks after those people when they come here? You mentioned earlier that investigations can take as long as 14 or 15 months. That means that if a refugee arrive here and it is subsequently established that he or she is a criminal, they will have had 14 or 16 months to commit crimes. Therefore, when this kind of refugee is here in Canada, who looks after him or her? Also, do you consider that such a time period is far too long?

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Mr. Paul Thibault: I will begin by answering your last question, that is whether the time taken at present is too long. Obviously, it is. We told the previous committee that we would try to improve the processing time. Clearly, we will try to take the necessary administrative measures and change the system by seeking to work more intelligently so as to deliver decisions more quickly. As a result, there will be fewer people in the system and less time will be needed.

As regards the question of who looks after them, at the present time there are a number of people involved. For social assistance and legal aid, it is the provinces, and the situation can vary from province to province; sometimes the municipalities are involved, particularly in the case of large urban areas, as well as non-government organizations. Therefore, there is a wide range of players involved in the system.

Mrs. Monique Guay: I think that often a case-by-case approach is taken. If a country is in a permanent state of war, we know that we will have to take in refugees. When a certain number of people arrive at the same time, is it not possible to speed up the process, since we have prior information about them and know that we will take in refugees from the country concerned? In such cases, would it be possible to speed up the process?

Mr. Paul Thibault: That would be the responsibility of the Department of Immigration, which would have to decide on the type of visa to be granted to the nationals of the country concerned. Our mandate is solely to deal with those people who come to Canada by their own means and are referred to us by the Department of Immigration. As regards people involved outside Canada, who decide whether they should or should not grant a visa or priority to a particular individual, those are questions you should address to the Department of Immigration.

Mrs. Monique Guay: Therefore, if there were a crisis somewhere, the Minister would decide on the process to be followed.

Mr. Paul Thibault: Exactly.

Mrs. Monique Guay: She would be a person who would decide whether to open the door to a certain number of refugees.

Mr. Paul Thibault: That's right.

Mrs. Monique Guay: These issues do not concern you.

Mr. Paul Thibault: In fact, those people would not come through our system.

Mrs. Monique Guay: I see. Lastly, I would ask you whether the Minister has discretionary power over decisions. In other words, does she have the power to move a file along and also does she have the power-which would still be discretionary—, to refuse refugees?

Mr. Paul Thibault: I would ask Mr. Palmer to reply from a legal point of view, but I would just remind the members of the committee, that essential to our system is the principle that decision-makers are independent. Each decision is taken independently. People are not dealt with as members of a group or citizens of a country. Each is dealt with individually, and the decision-maker must be free of any influence, by the Minister, a group, a non-government organization or any other party; the decision-maker must be able to take his or her decision alone.

Mr. Palmer will explain the involvement of the Minister's representative in a particular case.

Mr. Philip Palmer: If there is any involvement in a particular case, it will obviously be at the process level that may influence the panel in its decision. Generally, the Minister would not seek to influence an individual decision. If there is a large number of claimants from a particular country, we will then, at the administrative level, try to speed up the integration process. We also have a process referred to as expedited hearing, which is reserved for clear cases concerning refugees whom we accept because of abuses perpetrated in their country of origin.

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[English]

The Chairman: Ms. Augustine.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): I want to compliment you on a nice, crisp presentation. It was very clear.

I was intrigued by your vision statement. I'd like to ask if you think the public perception of your vision statement is...and I'm looking at words like “simply”, “quickly”, and “fairly”. If you walk out on the street and ask Jean or John Doe, I'm sure they would not say that the system is as expressed in your vision statement.

What kind of work is taking place to ensure that this vision statement is well known to Canadians, or that in some way offices who deal with you on a regular basis—and when I say “deal with you”, I mean deal with constituents who come into your system—get the message of fairly, quickly and simply?

Mr. Paul Thibault: I'm happy you're attracted to the vision statement. In a kind of jargonese, the difference between a mission and a vision is that a vision is clearly where we want to be. We're not there. That's what we're aiming for. It's one of the things to which I personally attach a lot of importance. It sets the tone for the organization and it sets the tone of the direction of every decision.

When I talk about decisions, I mean administrative decisions as to how we're going to shape the organization. Until such time as any legislative changes may or may not occur, we have a period of—who knows?—one or two years, and we're not going to sit back. We're going to try to make things better within the framework in which we operate.

The vision is essentially for our employees as well as for the outside to show what we want to try to do. Every decision we take administratively will go through that prism. So whether it's information that's provided to decision-makers, whether it's how decision making gets done as a process or whether it's how we treat our clients—and clients can be anybody, parliamentarians as much as people who make claims—simply, fairly, and quickly is a key. Innovation is a key, because we're not going to survive without using technology more, and better. We have six regional offices. We already use videoconferencing, but we have to get into using hearings through videoconferencing as opposed to sending people all over the place. We have to use technology in the hearing room, eventually. We have to use it for sending the information to decision-makers—country information or whatever. We have to use all of this stuff shorter, quicker and better.

The core of this is not working harder but working smarter. We think there's a lot we can do, and that's what we're going to try to achieve through this.

The Chairman: Thank you.

Do you have a question?

[Translation]

Ms. Diane St-Jacques (Shefford, PC): I would like to thank you for your briefing, which has helped us to familiarize ourselves with the refugee determination process. My question refers to removal. Your colleague, Mr. Campbell, told us on Tuesday that when a refugee claimant was removed, another country had to accept him or her. If no country agrees to do so, what do you do with the claimant?

Mr. Paul Thibault: I would ask Ms. Benimadhu who, until recently, was the Director General of Adjudication, to give you some idea how this works.

Ms. Jennifer Benimadhu (Director General, Management Services): Are you referring to people who are being detained?

Ms. Diane St-Jacques: Let us assume there is a removal, because of a crime or some other reason.

Ms. Jennifer Benimadhu: So the person is being detained pending removal, for example?

Ms. Diane St-Jacques: Yes, pending acceptance by another country. If no other country accepts the person, what happens?

Ms. Jennifer Benimadhu: The detention is reviewed every 30 days. At the hearing, the individual and his or her lawyer, as well as the minister, have to prove to the adjudicator that every effort is being made to obtain the necessary documents and make the arrangements for the removal.

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[English]

Ms. Diane St-Jacques: You can say it in English, if you want.

Ms. Jennifer Benimadhu: The adjudicator has to be assured at every detention review that the measures are being taken to find the travel documents and to remove the person. In the event that removal becomes illusory, then you cannot say the person is being detained for removal, and in that case the adjudicator would have to release the person.

But there's a dilemma here, because often these people are considered a danger to the public. They've been certified by the minister, under subsection 70.(5) of the Immigration Act that they are a danger to the public, which is the reason they are being detained for removal. So we have this dilemma of the protection of Canadian society, but if travel documents are not forthcoming, then it makes it very difficult to detain for removal. So it's a—

Ms. Diane St-Jacques: But you still keep him here, in jail or what?

Ms. Jennifer Benimadhu: No. If the adjudicator gets to the point where he sees, or she sees, that removal is in fact—

Ms. Diane St-Jacques: Impossible.

Ms. Jennifer Benimadhu: —illusory, or as I say very unlikely, then we have no grounds to detain, because removal is not happening, so then we have to release. But I'm just saying it's a difficult decision for any adjudicator to make—

Ms. Diane St-Jacques: You will release him?

Ms. Jennifer Benimadhu: —because we realize that some of these people are not necessarily people you would want living next door to you.

Ms. Diane St-Jacques: You would release him to stay here?

Ms. Jennifer Benimadhu: Yes. Usually, they are released. Efforts are made to try to find someone to set up a bond. Members of their community, or churches, often come forward to set up a bond for the person, so that they're here on terms and conditions, but yes, they are released.

Ms. Diane St-Jacques: We can't do anything about it?

Ms. Jennifer Benimadhu: The adjudicator certainly can't, and it's basically in the realm of immigration.

Mr. Paul Thibault: One of the dilemmas with this particular issue is that on the one hand there is a clear wish from one segment of the population that people, for whom there is a reasonable reason, should be detained indefinitely. At the same time, we are criticized, and we were criticized in the press today, for detaining people for too long. We're not complaining, it's just a reality, but we're often caught between a rock and a hard place, between either being too generous or not generous enough, and to steer that middle course will never satisfy everybody. It is one of the inherent difficulties of the job.

The Chairman: Ms. Minna.

Ms. Maria Minna (Beaches—East York, Lib.): Talking about this hearing and the balance, I was just looking at your document, and with respect to the approval cases, the acceptance level percentages we were talking about earlier, I notice that for 1994-95 you have a 62% approval rate, and then it goes down in 1995-96 to 54%, then 41%, and then 40% in 1997-98, although it's still not quite over the.... From 1993-97 it's quite low, and there has been a steady decline and maybe it will continue that way, I'm not sure. But I would like to know what this steep decline can be attributed to. What was the difference?

Ms. Evelyn Levine: There are several factors. I can start, and Philip can add on if he wants.

The acceptance rate can obviously be a factor of the nature of the caseload, the nature of the people and the alleged country of persecution. So as the world changes in terms of situations, then the acceptance rate goes up or down.

The other factor would be the human factor of the experience of the decision-maker. One impact of having a high turnover of decision-makers is that it takes between six months to a year to feel confident in terms of the information and how to make these decisions, because presumably we're talking about life and death decisions. So as a decision-maker becomes more comfortable, more experienced, they are more comfortable saying no, rather than going on the possibility of saying—

Ms. Maria Minna: So you say you have more experience in the system now than you had in 1994?

Ms. Evelyn Levine: Yes, because there was a high turnover of decision-makers.

Philip, do you have anything to add?

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Mr. Philip Palmer: No, I think that about covers it.

Ms. Evelyn Levine: That's the impact of turnovers.

The Chairman: Yes.

Madame Folco.

[Translation]

Ms. Raymonde Folco: First of all, I would like to thank you for coming this afternoon. Naturally, I am particularly interested in your presentation, because it brings back a lot of memories, some of which are good, and some of which are painful.

People often forget that 99% of the individuals who appear before us have experienced problems of various types. Sometimes there were economic problems. Those individuals are not refugees, but they nevertheless experience problems.

I would like to know, first, whether we could get some statistics on the number of war criminals and other people of this type who appear before the Board. The reason I raise the question is that the opposition has spoken on this topic so much that people may think that huge numbers of people who appear before the Board have already been involved in criminal activities in their country of origin and could do the same thing here in Canada.

Second, although your presentation was excellent, I would have liked to see the Chairperson here today. Her name was on the list of witnesses we were supposed to meet today, and unfortunately, I do not see her here. I just wanted to say that I regret her absence.

Let us turn now to a country which is unfortunately being mentioned as an example—Algeria. A number of others before me have talked about speeding up the process. The process must definitely be speeded up even more, and here I'm speaking on the basis of my past experience, of course. Many people have noticed that the period between claimants' arrival in Canada and the time they get a positive or negative decision from the Board is very long. In the case of Algeria, and even other countries embroiled in civil war, would there not be some way of speeding up the process?

When large numbers of Chileans arrived in Canada—and this is something of an answer to Ms. Minna's question—we knew what was happening in Chile. We knew that these people were not refugees, but that they came because they heard from their travel agencies that life was better in Canada. So we set up teams just to handle this problem, made up of people who were very familiar with Chile. These people had many documents that allowed them to settle the cases very quickly. I'm therefore wondering why we could not do something similar for people we know are genuine refugees, people who come from countries involved in the civil war.

I have another question about the length of time the process takes. I've often noticed that individuals who appeared before us had had a great deal of time to prepare their applications, with help from one or several lawyers. That meant that in some cases there were many discrepancies between the questionnaire completed by the claimants when they arrived in Canada and the application they submitted to us later on.

That is why I think we should get the application from claimants within 24 hours of their arrival in Canada, and not wait 28 days as it happens now. Then I think we would see very different applications. This would also be a way of reducing the delays and the number of false claims. I would encourage you to consider this suggestion.

There are two other points I would like to make. I have often noticed in my work for the Board that the vast majority of Board members took their work very seriously, worked very hard and long, and particularly did not want to let people in who were not genuine claimants.

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Nevertheless, the Board realized that there was a sort of parallel process going on. I'm referring here to claimants who were turned down by the Board and subsequently went to the Department of Immigration, which could accept their claims on humanitarian grounds.

I can tell you that the situation has a serious impact on the morale of Board members. After all, they spent a long time listening to the claimant and they decided, after discussing the matter, that the claim was not valid. Then the department comes along and overturns their decision.

I could go on about this longer, but I will stop here. Thank you.

Mr. Paul Thibault: I will try to answer your questions. Ms. Folco.

First of all, as you know, most criminals are identified before they arrive in Canada. We do not have the figures here on how many claimants came to Canada who were eventually identified as criminals. We could try to get that for you, but we cannot give you an answer today.

Ms. Raymonde Folco: I would like to interrupt you at this point, if I may, Mr. Thibault. I think it would be important for both us, the members of Parliament, and you, on the Board, to have these figures.

Mr. Paul Thibault: We will talk about that next time we appear before you.

I can give you the statistics on Algeria today. The number of claimants from Algeria has been 60 per month on average since January. So there have been about 500 claimants in eight months.

As you know, it is not up to the Board to take any special measures to encourage or discourage Algerian citizens from coming to Canada as refugees. For the time being, their numbers are quite limited. As you know, we now have a system for processing cases by group, by regional specialty. That is the case in Montreal in particular. Because of the current volume, we are doing our best to improve specialization in this area. I would add that between 60 and 70% of claims from Algeria are accepted.

Your last two questions were about the time it takes to process claimants when they arrive and the actions taken by the Department of Citizenship and Immigration on humanitarian grounds after a decision has been made for the Board. These matters once again go beyond our rather limited jurisdiction. These are questions you could raise when you are studying the legislation and the report you will probably be getting at the beginning of the year, because there will likely be some accommodations made along these lines.

[English]

The Chairman: Thank you.

Since there are no further questions, I would like to thank the panel of witnesses who have come before us today. The information was not only informative but very stimulating and enlightening. I hope we are going to meet again, because I am sure that in the course of the next year you are going to find that we have a multitude of other questions related to some of the tasks that will be before us in the next twelve months or so.

Thank you very much. The meeting is adjourned.