CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, November 3, 1999

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[English]

The Vice-Chair (Mr. Steve Mahoney (Mississauga West, Lib.)): I call the meeting to order.

Apparently Mr. Fontana is on his way, which will then give me an opportunity to get back into the debate with Mr. Ménard and others. Not to hold people up, but I think we should begin our proceedings.

This committee is meeting pursuant to Standing Order 108(2), a study on all aspects of the refugee determination system and illegal migrants.

The first order is to deal with the subcommittee, but we can't deal with it yet since we need a quorum. We can proceed with the witnesses. We have the assistant deputy minister of policy and program development, Mr. Greg Fyffe, with us from Citizenship and Immigration. We have the assistant deputy minister of operations, Martha Nixon. We have the director general of the enforcement branch, Elizabeth Tromp, and the director general of refugees, Gerry Van Kessel. Welcome, ladies and gentlemen. I understand you would like approximately 20 minutes.

So I would ask perhaps Mr. Fyffe if you could begin your remarks. Is it 20 minutes for all of you or for each?

Mr. Greg Fyffe (Assistant Deputy Minister, Policy and Program Development, Citizenship and Immigration Canada): It will be 20 minutes maximum. I'll speak for a time, and there will be some remarks from Ms. Nixon, but I don't anticipate it will be longer than 20 minutes.

The Vice-Chair (Mr. Steve Mahoney): Okay, and then we'll go to questions and hopefully answers.

Mr. Greg Fyffe: Thank you, Mr. Chairman. We've distributed a deck that I will be speaking to, and it's in relation to the terms of reference you just cited.

We're pleased to be here today to speak on the subject of the refugee determination system and related issues. We're very pleased to be cooperating with you in exploring these issues. We'll be happy to provide you with any additional information that you may find useful in the course of your deliberations.

Today I intend to provide a basic outline of how the inland refugee determination system works. I will also describe some of the problems there are with respect to people-smuggling, and I will provide you with a brief overview of the elements of the proposed legislative reform package announced last January that would assist us in addressing these concerns.

My colleague Martha Nixon will then spend a few minutes on the boat arrivals in British Columbia and will provide you with some information on how we've responded to this specific situation.

The information we will provide today will be rather broad in nature. We look forward to learning from you on what aspects of the issue you wish to focus your attention so we can provide you with more detailed information in future sessions.

In 1998 there were some 7,382 government-assisted refugees and 2,140 privately sponsored refugees selected abroad for resettlement in Canada. The current in-Canada system of refugee determination is based on our international commitments under the Geneva convention on refugees, and on the Charter of Rights and Freedoms, which guarantees applicants the right to be heard by the decision-maker. Refugee claims are heard by the convention refugee determination division of the Immigration and Refugee Board and a partial quasi-judicial administrative tribunal, which operates independently of CIC and reports directly to the minister.

The IRB reports that in the 1998 calendar year, 44% of claims were accepted, 35% were refused, and 21% were declared withdrawn or abandoned.

One of the pages in the deck has a brief diagram of the system. When a person in Canada makes a refugee claim, a senior immigration officer decides if the applicant is eligible to have the claim referred to the convention refugee determination division of the IRB for decision. The eligibility decision screens for security and for criminality, eliminating anyone deemed to be a danger to the public or anyone who has been involved in acts of terrorism or crimes against humanity. Between 100 and 120 cases are found ineligible to claim refugee status per year on these grounds, and these persons are subject to removal.

The IRB decides whether claimants are convention refugees. Persons found to be convention refugees by the IRB may apply for permanent residence in Canada. In accordance with guarantees of due process in the Charter of Rights and Freedoms, those found not to be convention refugees may apply to the federal court for leave to seek judicial review of the negative IRB decision.

Failed claimants may also apply for landing in the context of a post-claim risk review, which reviews whether the person, while not meeting the definition of a convention refugee, may be subject to persecution such as torture or arbitrary imprisonment upon return home, or there may be a review on humanitarian and compassionate grounds, such as family ties in Canada.

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Failed claimants who have exhausted all recourse have 30 days to leave Canada voluntarily, after which CIC may effect removal.

Criminally organized people-smuggling is on the rise. This is due to a number of factors—-the acceleration of the global movement of people; the widening gap between haves and have-nots, which means large numbers of poor migrants may seek to come to North America; and organization crime, which is able to derive large profits from people-smuggling.

We have seen recently a number of marine arrivals in British Columbia that we had not seen in the past; however, the levels that we have experienced so far are not as extreme as those experienced by Australia and the United States. For example, the Australian government has indicated that from July to October of this year, some 926 people arrived in Australia illegally on 28 boats. It is estimated that at this rate over 2,500 people may arrive in Australia by boat this year. In the past 18 months the U.S. has intercepted 20 ships carrying over 1,200 individuals.

Looking at access to Canada, the abandonment rate of 21% that is cited suggests that a certain proportion of the people who come to North America are using the refugee determination system to access North America. More than half of refugee claimants do not present a passport or other legitimate travel documents at the time they claim refugee status. The majority of these claimants also do not have any other identification.

It is conceivable that persons in need of protection may need false documents in order to be able to leave a country that has exit controls and travel to a safe destination; however, the lack of identification at the time a claim is made in Canada raises questions of credibility, since the claimant needed travel documents to board an aircraft or to enter a country neighbouring Canada. The inability to establish identity adds to the already difficult task of determining whether such people represent a threat to Canada's security or are inadmissible for other reasons, such as criminality.

Looking at detention—persons are not detained arbitrarily. Non-citizens are detained based on specific grounds listed in the Immigration Act, which are that identity cannot be established, there is a flight risk, or there is a danger to the public and the security of the public.

In addition, the grounds for detention are reviewed at regular intervals by an adjudicator of the Immigration and Refugee Board, who is an independent decision-maker. Adjudicators must decide at each detention review whether a person should be released or whether the detention should be maintained. The balance between the rights of the individual and the interest of the state shift over time so that the longer a person remains detained, the greater the onus on the government to justify continued detention.

If CIC detains individuals who are unlikely to appear for immigration proceedings, then the question becomes whether adjudicators will maintain detention while immigration proceedings are ongoing. In the case of individuals being detained for removal, the likelihood that detention will be maintained is often stronger, since removal often takes place in a matter of days or weeks. However, in the case of persons being detained because there are reasonable grounds to believe they will not appear for the refugee hearing, there is a greater chance of release, since these cases may take many months to conclude.

The quasi-judicial refugee determination system protects the rights of the individual, but it can be lengthy, given that each decision is accompanied by a right to seek judicial review. The total process may take between 16.5 and 20 months, or in some cases longer, where unsuccessful refugee claimants pursue post-claim recourse.

The processing of these cases includes 30 days for CIC to refer the case to the Immigration and Refugee Board; 35 days for the claimant to file a personal information form, which sets out the basis of the refugee claim; 10 months for the IRB to render a decision; 15 days to file for leave to seek judicial review of a negative IRB decision at the federal court, running concurrently with 30 days to file an application for a post-claim risk assessment, which takes CIC seven months, on average, to decide, during which time the federal court takes an average of four to six months to decide whether to grant leave to seek judicial appeal.

In all, approximately 10% of leave for judicial appeal is granted, and a portion of those cases is in some way successful. The length of the entire process is difficult for those who are in need of protection and undermines the integrity of the system by allowing those who abuse it to remain in Canada for a prolonged period.

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Legal aid is under provincial jurisdiction and concerns have been expressed about the costs associated with funding legal representation for refugee claims who are detained, and in fact for the whole range of legal aid questions. The removal process can carry on for years in the face of court-ordered stays, difficulties in obtaining travel documents from the home country, and a lack of cooperation from the person concerned. These were issues that were also the subject of earlier deliberations of this committee on removals.

In the context of the ongoing legislative review, the government is seriously considering a range of measures to increase the integrity of the refugee determination system, including increasing penalties to be in line with those applicable to drug traffickers, targeting the seizure of smugglers' assets as new deterrents, and increasing detention.

At present, 8% of refugee claimants—about 2,000 per year—are both undocumented and uncooperative. That is, they may refuse to identify the airline that transported them and the routing and to help us with identifying them personally. Many have documents when they begin their journey toward Canada, but their documents disappear and in the process are often returned to the smugglers. These people may be detained for a period of time subject to detention review until their identity has been established.

Next is strengthening Canada's network of immigration control officers to further deter illegal migration. These are officers posted overseas, enhancing security checks by performing these at the time claims are made to allow for faster removal of those not eligible for refugee protection. Implement consolidated decision-making at the IRB, whereby all protection-related grounds could be examined in a single process. Broader protection grounds would include international conventions where refoulement would threaten life and security of the person. An example of this might be the convention against torture.

Next is increasing the number of ministerial interventions at the IRB to ensure that the best information available is provided to decision-makers. Additional measures are under consideration to deal with the issue of boat arrivals. These could be incorporated in the overall legislative review package. The decision as to when a legislative package would be introduced has not been made at this time.

In terms of international initiatives, as 58% of Canada's port-of-entry refugee claimants arrive from the U.S.A., it is of particular concern that we work with our U.S. partners. The border vision initiative with the U.S. is to address the problem of the two-way irregular movement of people within North American.

The recently signed Statement of Mutual Understanding on Information Sharing will allow for a greater exchange of information on people-smuggling. CIC is playing an active role in the development of two United Nations protocols against the smuggling of migrants and trafficking of persons, especially women and children, in support of the United Nations convention to combat transnational organized crime.

The objectives of the protocol are to criminalize the acts of smuggling and trafficking and to promote cooperation among state parties in the fight against transnational crime activities. As well, CIC along with the RCMP is working with the Government of China to curtail the activities of people-smugglers. To this end, a senior joint CIC-RCMP mission recently visited China to begin discussions.

I'd now like to ask my colleague Martha Nixon to speak about the current situation with regard to boats in British Columbia.

Ms. Martha Nixon (Assistant Deputy Minister, Operations, Citizenship and Immigration Canada): Thank you, Mr. Chair.

I think the information that's on the last slide right at the back of the deck is pretty well known to all the members of the committee. There were four ships with 600 migrants from the Fujian province in China. As you can see from the slide, we currently have over 400 people who remain in detention from that group.

There are 84 people who are considered to be juveniles and who are in the care of welfare authorities. There are 83 people who have been released from detention by the adjudicators. As I think you are also aware, we found that 52 people who have been released from boat one are in fact not in sight. They are missing and for the most part there are warrants for their arrests.

Of the total number of migrants, 492 have made refugee claims. As of October 28, 1999, the IRB has made 11 decisions on those claims, all of them negative.

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We know there are concerns about the costs of these boats. At the moment, unlike the reportage that you saw yesterday, the cost to CIC of the four boats has been approximately $5.7 million—a considerable amount.

If we look at the phenomena of the boats, it's clear that although we had a contingency plan for marine arrivals in the region of British Columbia, the arrival of these four boats has put considerable pressure on our delivery system in the province of British Columbia. While we like to look at these 600 boat arrivals as a phenomenon that is relatively unusual for us, we still, in a sense, have to context it in the overall presence of the people who arrive and who seem to have the intent to make claims for what we've considered to be frivolous purposes.

There are, as you know, roughly 25,000 refugee claimants, and the 600 people who are coming on boats will be part of that overall number. Of course, 100% of the people who have arrived on a boat are undocumented, so the process of determining their identity becomes a very difficult one.

When we were processing that first boat, we did work with the migrants and with our embassy in Beijing and we did confirm the identity of 153 people and released them after we confirmed who they were.

If undocumented arrivals are coming in normally through land borders or through airports, they are not routinely detained. When we looked, however, at the phenomenon of the large numbers of people coming in on boats, it was evident that, after our experience with the first boat, if we did not detain them we would have difficulty processing them. There was some considerable fear that they would disappear.

Generally speaking, in British Columbia about 69% of the Chinese claimants from January to August 1999, according to the CIRB, have not considered finishing or passing through to the final point in their claim process. Due to the high abandonment rate of Chinese claimants, we consider this to be the obvious involvement of organized crime in these smuggling operations. We intend to continue to argue for the continued detention of migrants who are at this moment detained.

We are struggling to handle the pressures of the detention of this number of people and we are working with the Province of B.C. in that regard because they are the ones that provide the facilities for us. Some 227 of the detainees were transferred to Prince George, where there was space available, and we are currently trying to handle that logistical problem, both in terms of our own processing and the need to make sure there are legal aid lawyers present.

So there will probably be interest in terms of this committee in many of the different aspects of this phenomenon and in the related refugee claimant process across Canada, but that's just by way of introduction.

Greg has touched on some of the directions that we have proposed for legislative reform that have been circulating in the white paper. We're touching briefly on the boat arrivals and that phenomenon. It's important to context all of this in terms of the fact that we work with so many partners domestically in trying to deal with this issue.

The RCMP have been very much part of the operations that we're talking about. Internationally, it's very important that we continue to work with other countries, with multilateral fora such as the UN, to really target smugglers in terms of the source of the problem and to enhance what we consider to be the need to continue our interdiction efforts.

As Greg mentioned, we are working with the U.S. and with many other countries that are involved in this issue.

We would like to put these facts on the table for you by way of introduction, Mr. Chair, so that this may help you shape where you want to go with these issues. It is a complex and difficult subject, and we would like to be available to offer whatever assistance we can as you review this issue.

Thank you very much.

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Thank you all for a very quick presentation. I apologize for being late.

I'm sure we'll have an awful lot of questions. As I think you indicated, it is a very important issue not only for CIC but also for this government.

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I have Mr. Anders for the first 10 minutes, and then Mr. McKay.

Mr. Rob Anders (Calgary West, Ref.): My understanding of the American process on this, especially in this particular circumstance with the boats that came over from China, was that they have the ability to go ahead and send their processing agents out to meet the ships at sea. I'm wondering whether or not there's ever any consideration given to Canada developing that type of capability. It's one thing to process somebody once they're at your facilities and on your borders and they've already landed on your coastline. Are there any considerations at all to live up to the standards of other nations that actually meet migrants at sea and process these things at sea rather than wait for the problem to come to us?

Ms. Martha Nixon: It's my understanding that the U.S. has a considerable capacity, particularly in the south Pacific, to be available and aware of boats that are passing. They often have the capacity to intercept those boats and direct them toward an island that is a protectorate as opposed to a U.S. territory. This makes it easier for them to actually do the processing of people, because they are not on U.S. soil and so they do not have the right to make a refugee claim.

Mr. Rob Anders: I realize you could go on with that kind of explanation of how the United States can do it and we can't. What I want to boil it down to is, what do you need to be able to do that? What do you physically need? What needs to happen? What type of boats do you need? What type of resources are we talking about allocating for that to happen?

Mr. Greg Fyffe: Mr. Chairman, so far when we've looked at this issue it's not at all clear to us that we would have the legal authority or the facilities to do that kind of preliminary determination. We have not been successful with any kind of preliminary determination regime. There was one in the current process and it was eventually dropped because it was defined by the courts out of existence essentially. We would be intercepting in international waters, which would make some of the legal issues quite complicated.

Our conclusion to date is that this is essentially not an option for us.

Mr. Rob Anders: You're saying you don't have the legal authority. Are you saying, basically, then that Parliament has not given you the type of legislation or direction you need vis-à-vis the courts in order to be able to do your job?

Mr. Greg Fyffe: It's more than that. It comes down to international law, to maritime law, and to the charter.

Mr. Rob Anders: Frankly, I'm not going to buy that, because the United States does it. When you say it is somehow beyond the pale of international law, I know that other nations can intercept these situations at sea and Canada can't. I know the job can be done. I want to know what it takes to get there.

Mr. Greg Fyffe: The legal advice that we've received so far is that it's dubious as an option for us. It doesn't appear to exist for us.

The Chair: Perhaps I could be helpful, Rob. I wonder if you could provide us with the international law that talks about jurisdiction and the legal interpretation that has essentially discounted our attempt to do that. It might be helpful for some of us who might want to look at that.

Mr. Greg Fyffe: Yes, we'll provide that analysis, Mr. Chairman.

The Chair: Thank you.

Rob.

Mr. Rob Anders: There's a description here of how, for example, 400 are still in detention, 83 have been released, and 52 of those 83 have vanished into thin air and they've just gone missing. We're now flailing about with warrants for arrest and whatnot, hoping for the best, I guess.

I have a question with regard to the last point in your boat arrivals sheet. It says that as of October 28, the CIRB had made 11 decisions on refugee claims. All were negative. I'm wondering where those people are. What's happened to those 11 refugees whose claims have been made in the negative?

Ms. Martha Nixon: Once the decisions have been made on refugee claims we would normally be tracking these people in order to remove them. I cannot at this moment tell you where all 11 are. Our practice would be to track them for removal.

Mr. Rob Anders: When you say “tracking”, what exactly is going on? Does somebody, somewhere, hopefully? You don't, I can tell, but does somebody know? And what's going to happen?

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Nobody wants that question?

Ms. Elizabeth Tromp (Director General, Enforcement Branch, Citizenship and Immigration Canada): No, no. We'll answer the question.

The Chair: I'm sure they can all answer if we just give them an opportunity.

Ms. Elizabeth Tromp: Yes, somebody does know.

Mr. Rob Anders: What's that somebody going to do?

Ms. Elizabeth Tromp: That somebody would be required to report regularly, for example, if they were not in detention, and we would be continually monitoring that situation so that they did not abscond. This is a situation we deal with in many cases, not just in these particular ones, of course.

Mr. Rob Anders: Let me ask you this. Is it possible for these 11 people, who somebody is tracking, to go missing, as the 52 have gone missing?

Ms. Elizabeth Tromp: Yes.

Mr. Rob Anders: Yes, that's what I thought.

You know, it's very frustrating when I talk with American legislators and they regularly critique Canada and our efforts here, because we are an extremely porous border for them, and a lot of these people, as I'm sure you well know, go to the United States. It's very frustrating, because I have to throw up my hands and say unfortunately we don't have an administration that's willing to come through with pulling out the changes on this that are necessary. It's very frustrating.

Mr. Greg Fyffe: Mr. Chairman, I could add a bit of detail. As of October 25, of the 11 people, five are in detention, four are released with terms and conditions, and two are not traceable—in other words, they have gone. I would point out, though, that the group we're talking about here is the group that was released from the first boat, and there's only a handful of those left. After these preliminary cases, we get to cases where everybody is already detained, and this becomes less of an issue.

Mr. Rob Anders: You say you have 400 people still in detention. If right now, by the stellar track record of the ones we've processed, 52 are missing, how long will it take you to process the remaining 400? Then I guess we can only guesstimate and calculate how many of those are going to go missing. But how long will it take you to at least process them until they run away?

Ms. Martha Nixon: I believe the IRB will be here tomorrow to give you greater detail, but their current estimate is that they will be finished processing the number of migrants who are currently awaiting processing by February 15. That is when the last hearing will be scheduled, the middle of February.

Mr. Rob Anders: I'm going to ask a question based on some of your own documentation and what you say the mandate is.

There's supposed to be an interest applied to danger to the Canadian public and national security. That's what the documents say; that's what the mandate says. So if we know people have links to organized crime, as you've laid out—you've said that's fairly apparent from what you've seen—is it not fair to assume then that having these people walk away and not being adequately tracked poses a threat to national security and a danger to the Canadian public?

Mr. Greg Fyffe: When the boats started to arrive, we were dealing with what for us was a very unique situation, and we were dealing with a detention regime geared entirely to short-term detentions. The initial reaction of adjudicators was to put people out, as we would normally do in these cases. It quickly became evident that detention would be necessary, and after that point, virtually everyone was detained. That's why only a few people are left who are coming before the board and are not in fact detained. We have about 13 more cases, and then everyone who comes before the board is already detained.

Mr. Rob Anders: My last question for this round, if there are other rounds, Mr. Chairman, is this. I'd like to know what the fines and the sentences are for people-smuggling, as it stands right now. I'm a new member of the committee, and maybe it's been discussed before, but I'd like to know what Canada has as a fine or a criminal sentence for people-smuggling. I'd also like to know when the last time was that we actually went ahead and convicted somebody and they served time for it and got fined for it.

Mr. Greg Fyffe: I'd like to ask Mr. David Dunbar from our legal branch to answer the specific questions on the fines, but I would like to point out that it's the RCMP that's in charge of investigating and prosecution and so on. So that decision ultimately is not ours.

David.

Mr. David Dunbar (Counsel, Citizenship and Immigration, Department of Justice): The provisions in the Immigration Act for people-smuggling are found at section 94(1) and onward. They're divided up. Section 94(1) deals with smuggling a single individual. On conviction, on indictment, there is a fine not exceeding $100,000 and imprisonment for a term not exceeding five years. If the crown elects to proceed on summary conviction, there is a fine not exceeding $10,000 or imprisonment for a term not exceeding one year.

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If someone is convicted of smuggling a group of 10 or more—it's in subsection 94(2)—and on indictment...the person is guilty of an offence, liable to conviction on indictment for a fine not exceeding $500,000, or a term of imprisonment not exceeding 10 years.

Mr. Rob Anders: But—

The Chair: No, I can't. You'll get another chance.

Mr. Rob Anders: All right.

The Chair: By the looks of it, you're the only one here on the Reform side, so you'll get a lot of chances.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I'm going to split my time with Mr. Mahoney.

The Chair: Thank you.

Mr. John McKay: I notice that in your third-last deck you have directions for reform. From this side of the House, we've been trying to do that for a long time, but they don't seem to pick it up.

My first question is on your first deck, on refugee determination. Assuming that everything is on the table, given that this particular class of migrants has absolutely no interest in obtaining status—they're just here to go somewhere else, or to enter into activities that are incompatible with what our values are in this country—if the eligibility decision by a senior immigration officer is yes, the person goes into the refugee determination; if it's no, the person gets leave to appeal. What's the point of that?

Mr. Gerry Van Kessel (Director General, Refugees, Citizenship and Immigration Canada): This is in the case of someone who gets a negative decision from the Immigration and Refugee Board.

Mr. John McKay: No, this is by the senior immigration officer.

Mr. Gerry Van Kessel: It's my understanding—David can amplify on this—that at any decision point, and under the laws of this country and the interpretation of those laws by the courts, individuals have a right to seek judicial review. It's also my understanding that rarely does judicial review take place at the eligibility stage, simply because so few cases are decided negatively at the eligibility stage.

Mr. John McKay: That's the point. Why have it in the first place? Why not just simply move it through to refugee determination? What does the public policy goal achieve by having this point of determination?

Mr. Gerry Van Kessel: The public policy point of that is to try to ensure that those people, like people who have protection elsewhere, who don't need refugee protection, those people who may be inadmissible to Canada on war crime grounds, for example, to the extent that we find out that information, don't get put into the process. That is the reason for that.

There are times when we don't have the information to go ahead, and subsequently we get information that's negative to the individual concerned and we seek to remove them from the process.

Mr. John McKay: Let's say I'm a war criminal trying to emigrate to Canada, and I show up at Pearson airport and say “I'm a refugee”. The senior immigration officer says “No, you're not”, and then we're into an appeal process. Haven't we just wasted a lot of time? Why not just get him into the system and be done with it?

Mr. Greg Fyffe: I think the difficulty with that would be that once it comes to the board, the board is assessing on protection grounds—does this person need protection?—and unless there were specific criteria on war crimes built in somewhere, they would not be able to take that into account. In other words, you might have somebody who in fact was a refugee because their crimes were so horrendous that they flew away from the current regime, and the board might not be able to take that into account. It has to be taken into account, either in eligibility to the process or within the process, and the process is directed to the convention—

Mr. John McKay: Why not then move that over right into the system? One of the problems, one of the frustrations in this whole process, is that too much time is being taken to go through the system. So is there any public policy, legal, or regulatory reason that risk review, H and C, and even eligibility for determination by an immigration officer couldn't be done either simultaneously or sequentially to the refugee determination process?

Mr. Greg Fyffe: The answer is yes and no. There is a reason—

Mr. John McKay: Could you break that yes and no down?

Mr. Greg Fyffe: There is a reason that it couldn't be done for eligibility, because it's a different kind of decision. It's a basic eligibility decision and a basic public policy that someone who has committed crimes or is a risk shouldn't be judged on protection needs. They are excluded from the process at the start, which is more efficient than going through the whole refugee process.

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However, for the other things you mentioned, anything that is fundamentally a protection decision—the risk elements of humanitarian and compassionate review, the other risk elements, such as the convention on torture or post-determination risk, plus the convention grounds—could be consolidated in one decision within the Immigration and Refugee Board, and that was the proposal that was in the white paper.

Mr. John McKay: That's right. What's ultimately preventing you from moving on that at this point? You don't need legislative change for that.

Mr. Greg Fyffe: Yes.

Mr. Gerry Van Kessel: Yes.

Mr. John McKay: You do need legislative change for that? Could that be done by way of amendment to the current act?

Mr. Greg Fyffe: Yes.

Mr. John McKay: So this whole process could be shrunk dramatically with a fairly minor amendment to the act.

Mr. Gerry Van Kessel: I have a couple of comments.

First of all, with respect to the eligibility determination, I think I know what you're referring to, the timeframe it's taking in certain areas of Ontario on inland cases where it is taking us—and we acknowledge this—too long to make the eligibility determination, which is adding to the total process. We are looking at that right now, and we have some reason to think we're going to be able to shorten that time, as we were able to do at the airports, from what took quite a lengthy period of time to now a matter of days. That's the first comment.

The second comment with regard to the impact of consolidating the various decisions that get made around refugees and refugee-like criteria is that there will definitely be a saving in terms of the timeframe of that happening, but given that—and this gets fairly technical—the post-determination part of the process is coincidental, is parallel with the federal court part. You've still got that part to worry about. It takes about four to six months for somebody seeking leave to the federal court, which is roughly the same period of time it takes for our post-claim review. It'll save in resources, but it won't save as much time as you would initially think.

The final comment would be—and this again is very technical—that while we are seeking to put the risk part of the humanitarian and compassionate review into the refugee board's decision, the opinions we've gotten from the Supreme Court also make clear that if someone is here for some considerable period of time after a negative decision and then says, yes that may have been a negative decision, but circumstances have changed and therefore you have to take a look at my case again, there is a requirement on our part to review that case—not in the extended manner of a full refugee hearing, but in some administrative way that we do now or some formalized process that doesn't exist at the present time.

Mr. John McKay: I know there are a number of constituent elements that you've given to the question and I'd like to come back, but I'm conscious that I'm taking Mr. Mahoney's time.

The Chair: Before you do that, could I just—I won't take the time from you, Steve—

Mr. Steve Mahoney: How much time are you going to give me?

The Chair: You now have three minutes.

Mr. Steve Mahoney: Well, I'm on for a five-minute question.

The Chair: Mr. Fyffe, as a follow-up on what Mr. McKay and Mr. Anders said, I understand this committee hasn't looked at these directions for reform that were tabled as of January 1999. In fact, where is that paper, with regard to that option?

Mr. Greg Fyffe: The paper was released in January of this year. We conducted public consultations on it. There were further deliberations with the former minister, and the proposals are now with the current minister.

The Chair: And they're in this document?

Mr. Greg Fyffe: Yes.

The Chair: So if we were to look through this document, we would find some of those options?

Mr. Greg Fyffe: Yes, in the document entitled Building on a Strong Foundation for the 21st Century.

With some exceptions, this is where we are.

The Chair: Okay. I think that's obviously why we're doing the study. If it's not in here, I wonder if you could table all of those directions for reform with us, so that we can start to look at...we're looking for the solutions as of today, and I was just referring to your deck sheet.

Mr. Greg Fyffe: We can certainly provide the committee with copies of the directions that are in the document that was previously released, Building on a Strong Foundation for the 21st Century.

The Chair: Thank you.

Steve.

Mr. Steve Mahoney: I think what I'm going to do, if I might, is just ask a series of questions, then if you could make notes on them, you can answer them in whatever order you want.

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Dealing with the boat arrivals, you mentioned that there were 600 migrants in that period. I'd like to know if you know how many refugee claims we get at Pearson International airport on a monthly basis, just for comparative purposes.

Also, on the 11 decisions that were all negative, I'd like to know if you know if there were any common elements. Did they determine that, for example, these people are simply financial or economic refugees? How can two be missing if they were at the hearing at which the negative decision was brought down, and what are we doing to find them? Do they now have the opportunity of going into this 30-day, 35-day, 10-month, 15- to 30-day, seven-month, four- to six-month review process that you outlined a little while ago?

Also, I'd like to know if you know how many boats arrived in the same period in Australia, for example, and what their process is. If you can verify the comments made by Mr. Anders about however they do it—presumably gunboats on the high seas, with the United States Navy or something of that nature taking people to some Gilligan's Island for processing—I'm not sure exactly what that was all about. What are the U.S. practices? Can we look at Australia or the United States to see if there are some best practices that perhaps we should be using or could be using? If we can't use them, why specifically can't we use them? If it's not legislation, is it our Charter of Rights, which they're not encumbered with and we are blessed with, or is it some other reason?

There are a number of questions that maybe you could answer for me.

Mr. Greg Fyffe: I'll start, Mr. Chairman, and then ask my colleagues to fill in.

Specifically, we certainly are looking at the experience of the U.S. and Australia for best practices. We're involved in a lot of conversations with them.

I think our situation is probably closest to that of Australia, although they do not have a charter of rights, so they have more flexibility in some ways. But their basic practice is similar to ours. They intercept the boats on the high seas, escort them to land, and give the people refugee hearings, although they have a detention facility at Port Hedland in which they keep all people before removal. They have worked extensively with the Chinese to assist in removal, and we are interested in learning some of the lessons from there.

The U.S. system is somewhat different, and Gerry will be able to go into that in a bit more detail.

The other point I'd like to add is on what you asked about the length of the process. All of those steps that we outlined are available; however, the IRB has given priority to these hearings. It takes so long because it's a relatively small office in British Columbia. They are giving priority to this processing, however, and hope to be able to shorten the overall potential process both from their perspective and from our perspective.

I'd ask Gerry if he could address the questions that fell on the refugee side.

Mr. Gerry Van Kessel: I hope I got them all.

With respect to how many people are arriving at Pearson, Mr. Mahoney, the information I have here concerns the total number of cases that are referred to the Toronto office of the IRB. That's a little bit different from Pearson, but it gives you some sense of approximation, if I may. The total of cases referred to the Toronto office of the IRB last year was almost 9,900—9,865 to be exact. By my quick calculation, that's 822 a month. Of those, a total of 615 were Chinese, which is about 51 a month. We can get you the numbers on Pearson itself. They're a little bit different, but I think those probably will do.

Mr. Steve Mahoney: No, that's good.

Mr. Gerry Van Kessel: I do not have information on whether there are common elements in the 11 negative decisions. I am aware, as you probably are, that with the one negative decision there was someone who was claiming to be a Christian, and that was not accepted.

With respect to the options available to these persons who have negative decisions, they have the usual options available with respect to going to Federal Court and seeking leave to appeal, with respect to making an application for a post-claim determination, and with respect to submitting a case under humanitarian and compassionate.

• 1620

As we know, several of the people have already absconded. My presumption is that because they have absconded, they will not be pursuing any further appeals.

With respect to the U.S. practice, if you just allow me a minute, the U.S. overseas process has already been described, but I'd just like to add a little bit to it. When the Americans intercept a boat, they bring it to a protective island, and in that case the usual process doesn't apply. They then interview, and if they see that the people they interview have a credible basis for their claim, they will then normally go into a full process on the mainland. I know of one case in which people were in fact taken off the boat and there was a small number for whom they thought there was a credible basis. They were brought into a detention centre in Chicago, for example—and this was from the Mariana Islands in the eastern Pacific, I think.

Mr. Steve Mahoney: And if there is no credibility?

Mr. Gerry Van Kessel: If there is no credibility, then they have never been on U.S. formal soil. The arrangements are made as best they can be, with all the challenges that are involved, in removing them to the country from whence they came, which in this case would be China.

Now, the U.S. system—

Mr. Steve Mahoney: By boat?

Mr. Gerry Van Kessel: I assume it's by plane.

The U.S. has a system whereby if people arrive at a port of entry in the U.S. without documentation, they have what they call an expedited process in place. They will automatically detain these people. They will again do what's called a credible basis hearing, and if there's credibility in the claim that's being made, it goes into the full process. If there is no credibility, then the people are in fact removed from the country.

It's my understanding—and my information is not that up to date—that 90% of their cases like this do in fact have credibility and do proceed to a full hearing. They are normally also very often maintained in detention during the initial months, and they are not given access to employment for the first six months.

The Chair: If we could, we'll move on now to the second round. I should first point out, though, that the first report of our steering committee says that we want the Department of Citizenship and Immigration to provide the committee with a comparative study, in chart form, on the immigration refugee systems of countries such as Australia, the United States, Great Britain, France, and Germany, in particular about the refugee system. We might discuss that a little later, but I think it gets to some questions as they relate to what other countries are doing with regard to it.

Going to the second round, then, we'll go to five minutes, beginning with Mr. Anders, then Sophia Leung, and Mr. Price.

Mr. Rob Anders: Thank you very much, Mr. Chairman.

I was able to find the answer to the question, thank goodness. Somebody sent me a note, and I appreciate that. It turns out that we have not had anybody see a single day in jail with regard to people-smuggling since 1995. That was the last time we had somebody who was actually convicted and saw some time in jail. I understand that the biggest fine that's ever been handed out was $5,000, yet I hear it's supposedly up to $100,000 on the books. Anyhow, I think that's part of the problem.

One of the questions I'd like to ask is this. Of the refugee claims that have been rejected by the IRB, how many were deported after all avenues of appeal were exhausted?

Ms. Elizabeth Tromp: Sorry, are you talking about Canada in general terms?

Mr. Rob Anders: Sure, if you have examples with regard to this particular case or something that's relevant, that's fine. In general, though, of those refugee claims that are actually rejected by the IRB, how many of them actually get deported after their appeals are exhausted?

Ms. Elizabeth Tromp: I certainly have removal statistics. For example, for this year so far we've removed over 4,500 failed refugee claimants in the first nine months of this year, out of a total of 6,895 total removals.

Mr. Rob Anders: Okay, so you're saying that in 1995, of 6,895—

Ms. Elizabeth Tromp: In 1999.

Mr. Rob Anders: Sorry, 1999. I heard 1995 there.

Let me get that straight. I'm going to ask another question. Are these partial statistics? These are for so far this year?

Ms. Elizabeth Tromp: That's right. These are removal statistics for the first nine months of this year.

Mr. Rob Anders: Okay, for nine months you had 6,800 people who were determined to have been rejected and should have been deported, and of those 6,800—

• 1625

Ms. Elizabeth Tromp: Sorry, I'm speaking of the number of people we've actually removed from Canada. You're asking me about the percentage of failed refugee claims that we have removed, though, right? Is that your question?

Mr. Rob Anders: We can figure out a percentage, but what I'm looking for here is the number who have been rejected and have also exhausted all of their appeals. If they've been rejected, how many of those actually were deported? That's what I'm looking for, and I'm willing to take numbers for last year. I'm also willing to take numbers for part of this year. I'm just trying to get a scope of this.

Ms. Elizabeth Tromp: It's going to be a difficult question to answer, but I'll do the best I can in terms of our general numbers—and Gerry can help me out here I think.

We get about 25,000 refugee claimants each year in Canada. About 60% of them would be failed refugee claimants. Is that about 10,000 decisions?

Mr. Gerry Van Kessel: There were 10,231 negative decisions last year.

Mr. Rob Anders: Okay, 10,231.

Ms. Elizabeth Tromp: And last year we removed 5,097 failed refugee claimants from Canada.

Mr. Rob Anders: With 5,097, you're telling me that less than half of the people whom we determine to have been rejected and should be deported actually do get deported. Is that right?

Mr. Gerry Van Kessel: Not quite.

Mr. Rob Anders: Not quite?

Mr. Gerry Van Kessel: The reason I say not quite is that, first of all, you must remember that there are other processes that come into place after a failed refugee claim. Positive decisions can emerge from those other processes. For example, if someone makes a humanitarian and compassionate application, it may be a positive decision. In the different steps in the complex process, some of those cases will fall out and will in fact end up being positive decisions.

There will be other cases of people who will, at some time—help me out on this, Elizabeth—end up abandoning their claims or abandoning any efforts, and whom we just lose track of because they go home without telling us and so on.

Mr. Rob Anders: I understand that it's all very complex and it's all very difficult to deal with, but at the end of the day about half of them actually don't get deported.

My second question—

The Chair: For the record, I'm not sure that's a fact. That's your opinion; it's not their opinion.

Mr. Rob Anders: Everybody is going to say it's a complex problem, it's a complex answer, a complex solution, or whatever.

All right. I know I heard some questions over there in terms of specific aspects of the process, but I haven't heard yet what the total amount of time is in which we can expect a refugee claim to be processed to completion. Say they arrive, whammo, at Pearson Airport and they say “Ta-da, I'm a refugee”. In what time can we expect that process to be completed? What's the average?

Mr. Gerry Van Kessel: I would think the total amount of time can be a minimum of 20 months if that person seeks recourse to the various avenues that are available. Depending on how each of these steps plays out, though, it can be longer by a matter of some considerable months.

Finally, one thing I think we need to say is that with respect to the removal issue, there are cases in which it becomes difficult to remove because of documentation problems and so on. But for the process so far as we control it, I'd say it's a minimum of 20 months, with the possibility of it being longer by some months.

The Chair: Rob, that's your last question.

David, I made a mistake in the sense that I said that was the end of the first round. We're still in the first round, but we've moved from 10 minutes to five minutes.

Sophia, and then Mr. Price.

Ms. Sophia Leung (Vancouver Kingsway, Lib.): Thank you. I apologize for being a little bit late, but it was because of another meeting.

I'm interested in your direction for reform. Some of the ideas are very good. Number one, I think the increase of penalties for smugglers is good. Do you have any specific recommendation of that type? Right now it's very lenient.

Mr. Greg Fyffe: At the current time, the exact penalties that would be imposed, in the form of additional penalties, are under review. We therefore don't have a final determination on that matter, but we are interested in increasing them. As I noted, we're also interested in going after proceeds of crime, which is another deterrent.

An hon. member: Good.

Ms. Sophia Leung: Thank you.

On another item, consolidated decision-making at IRB, what do you really mean?

• 1630

Mr. Greg Fyffe: That refers to allowing the board to make all the protection-related decisions, which would be the current convention refugee determination, the risk element of H and C, which is now done afterwards, and the post-determination risk, which is done afterwards. It would include any other conventions that would be relevant to the determination, such as the convention against torture.

Ms. Sophia Leung: Now you have 400 in detention in B.C. We know you do not have facilities for that, so it's going to be quite problematic. What is your plan for more permanent detention? Also, there's a cost. Who will bear the cost?

Ms. Martha Nixon: We are currently exploring a number of different avenues and are trying to look at what is possible. We would like to have better facilities for detention. Obviously we've been working closely with the province, where we had people, to try to maximize, to use their facilities.

Some of the options would be, I guess, to look at trying to speak to our colleagues in Corrections Canada and to look at some of the options we have currently. For instance, in Quebec we have our own facility and we are able to manage that facility ourselves. But we're nowhere close to a decision; we really have to look at the business case to try to determine what would make the most sense here.

Ms. Sophia Leung: Turning to the international initiatives, it's very interesting that you say here “working with the government of China”. As you know, three of us went to China and did the negotiating on behalf of Foreign Affairs. I understand that two boats on their way to B.C. were intercepted by the Chinese government. That was really a sign that they listened to us, that we worked together. I just want to know more. What, so far, have you followed up on with our agreement?

The Chair: You're not looking for a permanent posting to China, are you, Sophia?

Ms. Sophia Leung: No. I'll stay here.

Mr. Greg Fyffe: It's necessary, I think, to have a very complete engagement with China on this. There was not only the trip that you and your colleagues made; there was a trip that our former minister made, with Ms. Nixon accompanying him, and a former associate visited before that.

In this instance, it was myself and Ms. Tromp, as director general of enforcement. Our purpose was to have preliminary discussions with the Chinese and to understand the priority they give it, from their perspective. We had a number of meetings with the ministry of public security and they stressed that this is in fact a priority for them; they do devote resources to it. We also had an opportunity to speak to officials in Fujian province, who did assure us that they took a number of steps. The instance you cite suggests that this is true.

We also have relations with Chinese consulates here in Canada. There's a good relationship between our British Columbia regional office and the consulate in Vancouver. We anticipate that we will develop these ties and appropriate exchanges of information and so on over the coming year and beyond.

The Chair: Thank you, Sophia.

Mr. Price.

Mr. David Price (Compton—Stanstead, PC): About two weeks ago there was a ministerial meeting in Finland, strictly on refugee claimants. The Europeans are looking at drawing up a common judicial zone so that they can look at the problem. Right now, the British aren't interested in it, but it seems like the rest of Europe is quite interested.

We realize it'll take a bit of time, but right now they expect that this year there'll be 500,000 people coming into Europe; that's a doubling in the last three years. Right now we know that a lot of the refugee claimants come out of Europe and into Canada. As Mr. McKay was saying, Pearson Airport is a prime spot. If they come up with this common zone, if they are successful in doing this, a lot of those claimants will probably skip over Europe and head directly to us.

Were we at that meeting? What are we doing about this? What are we doing to look at the upcoming increase and the possible problems this will create for us?

• 1635

I have another question. We were talking before about the island or protectorate that the Americans use. I'm new to this. In reading through the documentation, I saw that in 1987-88 we added to the act an amendment about a third safe country. No third safe countries have ever been determined. They're not on the list. What are we doing about this? Could you give a little more explanation of it?

Mr. Greg Fyffe: Perhaps I could answer that part briefly. Then I think some of the work Ms. Nixon is involved in with the border vision with the United States will address the other part.

Yes, there was a provision on safe third countries, which means if someone could get protection in another country, they wouldn't be eligible to make a claim in Canada. We were quite far down the road in negotiating an arrangement with the United States on safe third countries when they decided they did not want to pursue it at that time, which was about a year and a half ago.

There are occasional suggestions that they may be interested in taking it up again, because of course the flows are quite significant both ways, from the U.S. to here and from here to the U.S. I don't think the door is totally closed on it, nor is it completely open at this point.

I think some of the work that's going on around the border vision is quite relevant to the question you asked about how we would handle it. I would ask my colleague to describe that in a bit more detail.

Ms. Martha Nixon: I'll certainly be happy to do that. Gerry may know more.

I don't believe we were at the Finland meeting, but we have had some reporting out of it. It was a very significant meeting because it was the first time the EU agreed to meet on a sole issue and have a discussion of that nature. I had occasion to talk a couple of weeks ago to the Italians, who were at the meeting and who in fact put forward one of the first position papers, I think.

The question is probably more about how we work in terms of the North American continent, as we've been trying to do. We've begun discussions with the U.S.A. to look at the perimeter of North America, in a sense, as one we deal with together. If we're going to be looking at how to keep people away, in a sense, from flows across the borders in both directions—which we don't want to be there—we really have to start working with countries in the EU, countries in Europe, in order to forge alliances. We have many discussions with many of the European countries now.

The sort of Schengan relationship they have is still being tested, I think, in the sense of the flows and which people are going where, but I think it's important that we be engaged in those discussions. Gerry and some of our colleagues in the department attend many European forums and multilateral forums, where we have a chance to look at joint exercises, to have joint discussions, in terms of interdiction and those kinds of things.

Most important, probably, is sharing information. We have signed agreements with the United States now where we share information, so we know about the flows of people and the patterns of smugglers. We have also signed with the U.K. and with Australia and New Zealand.

Those are the beginning pieces, I think, of getting engaged in this discussion so that in fact we're not always shifting the problem to another country. I think working with the United States strengthens our position in Canada in terms of trying to deal with those issues.

Mr. David Price: You say we're working with the United States and sharing information back and forth, but from what we heard this summer, that's not the way it was happening. We heard there were a lot more people going across the border, such as at the Akwesasne reserve, with the problem there. Apparently, as Canadians, we didn't know anything about it.

Ms. Martha Nixon: I think we're painfully aware of the flows back and forth. Sharing information is a beginning step. It's obviously not going to solve the problem overnight. The problem is much more multifaceted than that. We are working with them on a number of different areas. Sharing information is only one of them.

I think what we are trying to do is look at things like our visa policies and how we can in fact better harmonize who we're both letting into our countries and how we understand why their visa decisions affect people who come to our country and vice versa. We're looking at how we deal with interdiction in a joint fashion. Where do we have our interdiction resources? Where do they have theirs? Where are the smuggling routes? What are the gaps? How do we work better together when we decide to do a joint exercise? As well, we're looking at some of the actual facilitation at the border points and how we manage those traffic flows.

Mr. David Price: The reason I ask—

The Chair: I'm sorry, David.

We'll go to Andrew, John, and Jean.

• 1640

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you very much, Mr. Chairman.

Mr. Fyffe, I liked your presentation and I would sure love a copy of it.

What percentage of refugee claimants did you say come to Canada from the U.S.?

Mr. Greg Fyffe: I don't think I supplied that statistic.

Mr. Andrew Telegdi: Yes, I think you gave a number.

The Chair: I think you gave it in a percentage.

Ms. Martha Nixon: You said it was 25% at the land border.

Mr. Andrew Telegdi: What about planes and that kind of stuff?

Ms. Martha Nixon: I have that.

Mr. Gerry Van Kessel: Some others apply inland. They get over the border, whether legally or illegally, and apply from within the country. Some of those who apply from within the country get here via the United States—probably a great percentage of them.

Ms. Martha Nixon: The statistics are 30% at airports, 25% at land borders, and 45% from inland.

Mr. Greg Fyffe: That's undocumented.

Ms. Martha Nixon: Undocumented.

Mr. Andrew Telegdi: It sounds to me like a pretty big number coming from there. What kinds of representations are we making to the Americans about getting a little better control at their borders, so we don't get flooded with people coming to this country and making refugee claims?

Mr. Greg Fyffe: These are some of issues that Ms. Nixon referred to. One is to give them back numbers on the kinds of claimants we know have come in through some of the major U.S. airports, for example, and then headed straight to make the call.

One is looking at people who have used U.S. visas to enter the U.S., principally with the idea of coming to Canada and making a claim. So the conversations on those topics are ongoing and productive.

Mr. Andrew Telegdi: Mr. Fyffe, perhaps you could supply better numbers to this committee, so that next time Mr. Anders meets with American legislators he can also put forward the problems we're having here.

You know, sometimes I wish I had been born a Reformer, because it's an easy world view to complex problems.

The Chair: Please stick to the questions and the witnesses. Rob, it's okay. Andrew, let's go.

Mr. Andrew Telegdi: The point I want to make is—

The Chair: But Rob is not the witness.

Mr. Andrew Telegdi: —whatever we do, we should do it within the framework of the Charter of Rights and Freedoms. We have to do that. That presents some difficulties, no doubt.

Mr. Greg Fyffe: There's the fundamental issue here of protecting charter rights—the right to make a refugee claim and due process—in an environment in which the process we have in place is being abused. That's our fundamental dilemma.

Mr. Andrew Telegdi: Some of the changes suggested by my colleague could help speed up the process and still be within the charter.

Mr. Greg Fyffe: Yes. There are lots of things we hope to be able to do to speed up the process.

The Chair: Guaranteed.

John.

Mr. John Bryden (Wentworth—Burlington, Lib.): Thank you, Mr. Chairman.

Just to pick up on what Mr. Anders was saying, despite the parliamentary secretary, you're saying that intercepting these vessels and processing these people on the high seas is not an option because of international rules. Why is it not an option? Who says it's not an option?

Mr. Greg Fyffe: As was suggested by the chair, we'll come back to you with details on our legal opinion. But what we've received so far is that we're not quite sure where that would leave us in terms of the extent to which Canadian law and the charter would apply outside of territorial waters.

There are issues on the interceptions of boats and whether they're flagged or unflagged. There are other issues I can't go into because I'm not an expert on maritime law. The information we got was that this was not a practical thing for us to pursue, but we will certainly come back to you with more detail on that.

Ms. Martha Nixon: Our people, along with people from the department of defence, the coast guard, and DFO, are sitting together now trying to look at some of the issues around maritime law and what more we can do.

It is complicated by the fact that one of the concerns we have about being more aggressive in interception is the desperation of the people who are smuggling and the lengths to which they have been known to go to put people at risk. I know there's a very real concern in that regard. That's a bit different from the marine law you're referring to.

• 1645

Mr. John Bryden: I wasn't taking in law at all. I point out to you that Canada seized a Spanish trawler on the high seas not very long ago. That was with a flag, and that was about fish, not human beings. Where did that decision come from? Was that decided by the Department of Justice?

The Chair: No; Brian Tobin.

Some hon. members: Oh, oh!

Ms. Martha Nixon: I can't answer that question.

Mr. Greg Fyffe: There are some practical issues too. Perhaps Ms. Tromp could refer to them.

Ms. Elizabeth Tromp: Certainly we've looked at it from a practical angle as well, and, all joking about not having an island aside, it is a practical difficulty. Generally speaking, one doesn't have many options in terms of turning these boats around by the time we find them. The boats are usually in such a horrendous state that there's a huge safety issue at play for the people on board. So clearly that's not an option.

It's an obvious point, but we do not have a protectorate out in the Pacific that we can take boats to for processing. From a very practical standpoint, even if we had more boats and more equipment out there to do some of these interceptions, by the time we found them they would be close to Canadian territory, Canadian waters, and from a practical perspective there really aren't any other options other than to bring them in.

Mr. John Bryden: I have to observe, though, that the Americans must have these practical problems as well. They don't want people dying and jumping overboard as the vessels approach. Surely one could come into an agreement with the Americans to use their protected islands, their protectorates, to process these people.

I observe that the real option is that, somewhere along the line, the Prime Minister or the cabinet made a decision on the Spanish trawler. I observe furthermore that no one in the world is going to take us to international court on a flagless vessel filled with migrants. What is the risk we're facing? I think we need to explore that a little bit further as an option, and I would be very interested in hearing from international law witnesses who would assess the international court risk, shall we say, to seize a vessel on the high seas.

If I may continue a little bit, Mr. Chairman, I have one other line of reasoning.

The Chair: You have a minute and a half for both the question and the answer. It had better be a short question if you want an answer.

Mr. John Bryden: I can always come back to it.

The Charter of Rights is very clear. It says everyone has the right not to be arbitrarily detained or imprisoned. I take it that is one of your problems with respect to detaining these people. It's the fear of the charter, is it?

Mr. Greg Fyffe: There are very specific legal provisions around reviewing people who are in detention, around legal aid and so on, yes.

Mr. John Bryden: Do you have a charter concern about detaining these people?

Mr. Greg Fyffe: The system for detention reviews is fine as it is now under the charter. The issue isn't the charter worthiness of the system, but rather what the decision will be in the particular case of the adjudicator who hears that detention review. At some point, as time goes along, the likelihood rises that the adjudicator will release the individual. It's an individual to individual assessment.

Mr. John Bryden: Let me put it another way. If somebody enters the country illegally, is that person breaking Canadian law?

Mr. Greg Fyffe: Yes.

Mr. John Bryden: So it would not be a case of arbitrary detention if we decided to detain him because he has entered the country illegally.

Mr. Greg Fyffe: Normally we would not criminally prosecute an individual for entering the country illegally. We would rather put that person into the immigration stream, and that's an administrative detention.

Mr. John Bryden: That's not the answer, though. The answer is that the charter is very clear. You can't arbitrarily detain people.

Mr. Greg Fyffe: Correct.

Mr. John Bryden: So if people have obviously broken Canadian law, is detention arbitrary?

Mr. Greg Fyffe: If you are detaining someone for an administrative purpose, the charter would require a regular review of the detention to ensure that it's not arbitrary.

Mr. John Bryden: But is it arbitrary—

The Chair: Excuse me, John, it's a good line of questioning, but I'm going to give you the opportunity to continue later.

Jean.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): Mr. Chairman, first of all, I want to begin by asking to be excused for being here late and for having missed—

The Chair: That's okay. You brought cookies, so you're forgiven.

Ms. Jean Augustine: Yes, that was important.

The Chair: That should be a lesson to all of you. If you're late, bring some cookies, coffee...the chairman likes all those goodies. I don't mind.

Ms. Jean Augustine: I may have missed the presentation made from the deck, but I want to ask two small questions. One is in terms of the removal process. The last time you were here, I remember that you did say to us that you had a list of receiving countries that seemed not too ready to issue those travel documents. Is that list getting any shorter, and how are we coming along in working with those countries that seem to be tardy in terms of issuing those documents?

• 1650

The other question is one that has been troubling me a bit, and that is the whole issue of abandoned and withdrawn claims. What happens to those individuals who have abandoned their claims or withdrawn them? Do they go through another process?

You seem to say here that some claimants are using the system to gain access to employment or to criminal activities. So they've identified themselves, they've made claims and then they've withdrawn the claims, which has left them exposed in some way. Where are those individuals in that system?

Mr. Greg Fyffe: If I could just clarify my statement, we think that the issue of abandonment shows that some people have used the refugee determination system to gain access to North America. They register a claim and then they disappear. They may very well have gone to the United States, for example, or they may have gone underground.

On occasion, somebody may formally withdraw their claim because they don't want to pursue it and they return to their home country. That does happen. But the larger issue is they may very well have just used the system to get into the country and then forgotten about the claim because it was never their intention to pursue it.

I think Ms. Tromp can reply in some detail to the question of the list of non-cooperative countries.

Ms. Elizabeth Tromp: There are certainly countries with whom we have to work to improve their timeliness in terms of issuing travel documents. But we have made some progress recently. I refer specifically to Jamaica, where we had a significant issue in terms of difficulty in securing travel documents, with the consequence that it was difficult to remove individuals, and many of them were criminal removals. These were important cases for us.

Through working with them in a variety of ways, we are in a situation now where we really do not have any backlog. We have much reduced the number of cases where we have issues, in terms of backlogs that do not respect the timeframes that were set out in the memorandum of understanding we signed with them, in getting travel documents issued.

So we are having successes. We have made some modest progress with Vietnam as well. This is a time-consuming process. With those countries, we need to work with our colleagues at Foreign Affairs and put a fair bit of effort into those relationships to see gains from them. We are doing that and continuing to track them. The example of our visit to China recently is another example where we are trying to build those types of relationships that will help facilitate that process.

Ms. Jean Augustine: Okay, Mr. Chairman. Thank you.

The Chair: Thank you, Jean.

Next is Rob, then David, and then John.

Mr. Rob Anders: Mr. Chairman, I just scared myself. I did some calculations.

The Chair: Your math is improving?

Mr. Rob Anders: I don't know if you'd call this improving math. If we take a minimum of 20 months to exhaust the whole process, that works out to 610 days. If we take $200 per day, which is the estimate for what it's costing per person, and 421 people are still detained, that calculates to over $51 million. Has there been budgeting for this process? What's the budget? Is it that much?

The Chair: We can probably review it in the estimates. I'm sure Ms. Nixon has the answer.

Ms. Jean Augustine: Would somebody check the math, please?

The Chair: We'll trust him with that. He has a calculator.

Mr. Rob Anders: You can do it yourself. It's not tough.

Ms. Martha Nixon: We certainly are tracking costs. As I said earlier, we were expecting the overall costs to be $24.4 million for CIC. At the moment we have $5.7 million actual costs, of which $4.1 million is the cost for detention.

Mr. Rob Anders: That's what you have so far, but are you looking toward budgeting for the eventuality of what this will cost in total? Based on the numbers you've given me, I get over $50 million. I get $51,362,000. And that's just the remainder, never mind the money that's already spent.

• 1655

Ms. Martha Nixon: There's no question that keeping people in detention is a costly process. I think your assumption is a straight-line projection, which is looking at the assumption that everyone is going to go through for 610 days and everyone will be kept in detention.

Mr. Rob Anders: I was told 20 months was the minimum.

Ms. Martha Nixon: That is if the adjudicator continues to keep them in detention.

We can probably both agree it's going to be expensive. We are looking at projections. I can't confirm that it's going to be $51 million, but it's going to be a lot of money.

Mr. Rob Anders: I don't think anybody would want to confirm that it's $51 million, but nonetheless that's what the numbers tell me.

Ms. Martha Nixon: Also, Mr. Anders, we were talking about 20 months for the normal processing of people. The IRB has agreed that they will speed up this process, and indeed these 421 we hope to have through by February 15. That would reduce the cost considerably.

Mr. Rob Anders: All right. I have another question. We've had detentions with the boatloads that have come over on the west coast. Liberal colleagues today have brought up situations at Pearson International Airport, Toronto, and other places. You went through statistics on where people are coming from. How were these people somehow magically different in being detained, as opposed to these ongoing situations we have everywhere else?

I realize there's a lot of public scrutiny of it, because it sure makes great evening news when you see a boatload of folks floating on the open sea coming toward the Canadian shore, but what about the airports and the other points of entry? What I'm basically getting at here is that those people aren't being detained, are they?

Ms. Martha Nixon: We do see the situations as different, in the sense that the people who arrived on boats off the coast of B.C. were demonstrably making a very flagrant attempt to come in illegally. They had no intention of going through an airport, being stopped by an immigration officer, and being asked the reason for entry. Indeed I think their intention was not to be detected; ideally that boat would have landed without anyone knowing it was there. So we do see the situations as quite different.

However, recently at Pearson we had a group of 22 migrants from China who came in from Pukiang province via a Hungarian charter. Because the number was 22 and because they were clearly here without documents and had the same intentions as the boat people off B.C., we did in fact put them in detention. We thought it was important to do so.

Mr. Rob Anders: I'm sorry. You're telling me you see it as different circumstances when in other cases the same smugglers are involved, and you don't question the intent of people who burn documents and say they don't have any documents and show up with no documents?

Ms. Martha Nixon: No, I'm not saying that. I'm saying in terms of people who are brought in, assisted, aided, and abetted by people-smugglers, we hope we can detect them at an airport, we will try to determine who they are, and they will be put in the process of refugee determination. But showing up and being subject to scrutiny at an airport is quite a different thing from trying to come in undetected through a port in B.C.

The Chair: Mr. Price.

Mr. David Price: Let's go back to the subject of the third safe country. Just as an example, I guess probably about a month or so ago, Tibetan citizens arrived in Toronto, and from what we've been able to see, some of these people were even born in India, and most of them spent most of their lives in India, yet they flew from India and some from Germany into the States and then into Canada and claimed refugee status as Tibetans. My understanding of the third safe country is that had we had a group of third safe countries, Germany and India would probably have been on that list. In that case, could we not have turned them immediately back to those countries?

• 1700

Mr. Greg Fyffe: The point of a third safe arrangement is that if someone did come through another country and where they could have received protection by a third safe country with an arrangement with that country, they wouldn't be allowed into our refugee determination process; they would be turned back.

As I mentioned, we had quite advanced negotiations with the United States, which they terminated themselves and which we may see revived.

The issue of which is a safe third country is a touchy one. There are a fair number of claimants that come to Canada from India—whether it's justified or not, there is a large number—and the principle we go with, whatever we may think, is that everyone is entitled to a hearing before the board. If there were a safe third country arrangement with the U.S., it would make a substantial difference.

Mr. David Price: Is that a difference in the sense that then we could start negotiating with other countries too?

Mr. Greg Fyffe: No, it would make a difference in the number that would be in the Canadian determination system.

Mr. David Price: But why can we not sit down and negotiate with other countries? For instance, that's why I brought up the European part. So many come over here from Europe, whereas those European countries could be determined as safe thirds and we wouldn't have them jumping across.

Mr. Greg Fyffe: They could, of course, but most countries that are interested in discussing safe third are interested because it's a reciprocal arrangement. In other words, if Germany had nothing to gain from this, our negotiations might not get very far. It would result in everybody who came through Germany having to stay in Germany, which wouldn't make them very happy because they get a huge number already.

Mr. David Price: But in that case, it is my understanding that these people being sent back to that safe third country could still make application through our consulate to apply back to Canada through that process rather than coming into the country illegally.

Mr. Greg Fyffe: The process that would more likely apply is that they would not go to Germany; they would apply from some neighbouring country to the country from which they were actually fleeing.

Mr. David Price: Yes.

Mr. Greg Fyffe: I think they would know that if we had safe third with Germany, for example, there wouldn't be much point in applying at the Canadian consulate unless there was some special need for Canadian protection.

Mr. David Price: In the little diagram you gave us—and I had a different one, which I found on the Internet—regarding the refugee determination hearing, leaving from there, there's an expedited process also. That's certain countries.

Mr. Greg Fyffe: I'm sure that's something on which you will get a detailed explanation from the board tomorrow, but essentially the board has an administrative way of picking out the cases that appear to be natural positives, not negatives, and to put them through a quicker process so that they can spend more of their time on the more contentious cases.

Mr. Gerry Van Kessel: I'd like to add that there are also other cases that are administratively fast-tracked because of people in detention, or because they're minors, or because they're serious criminals, and so on, and that is an administrative arrangement that is managed by the refugee board.

The Chair: Thank you.

John and John, you'll split time so that we—

Mr. John Bryden: I don't think we're dividing our time. I think John—

The Chair: No, I'm dividing it for you. You have one extra question.

Mr. John Bryden: Well, that's difficult, because we're following a line of reasoning, but you're in charge.

I heard you say you regard detention as an administrative arrangement. Is that correct?

Mr. David Dunbar: Any time you detain an individual, you have to follow a process for the detention. If you charge someone criminally and they're convicted, that's the process. You don't need to review it any more, because the person has been convicted by a criminal judge.

In the current situation, for immigration purposes, it's simply the immigration department saying we believe or we have reasonable grounds to believe that you will not appear for immigration processing or that you pose a danger to the public. It's lower in terms of what happens in the process where the person enters into detention. The protection doesn't occur there; the protection occurs at the detention review as it goes along for charter purposes.

Mr. John Bryden: So you're not detaining them because they've done anything illegal. That's what it boils down to.

Mr. David Dunbar: There are three grounds in the act for detaining: one is that the person won't appear; the second is that the person poses a danger; and the third is that the person at the port of entry is undocumented.

Mr. John Bryden: Okay, so it's not a question of them breaking the law of Canada by entering the country illegally. That's not the reason for detention.

Mr. David Dunbar: Those are the three reasons.

Mr. John Bryden: If I could make an observation here, I'm looking at “arbitrary”, and I have a dictionary definition here saying “merely at will; without sufficient reason; capriciously, unconstitutionally, or despotically”.

What happens when a person does a break-and-enter in your home? Do the police not have powers of arrest because that person has broken and entered? Are there not powers of detention as a result of being found in the premises illegally, even before formally charged and convicted? Is this not an exactly parallel case in that all you are actually lacking is the detail in law that makes the actions of an illegal alien a break-and-enter into Canada, which should be dealt with in the same way as someone who breaks and enters into your home?

• 1705

Can it not be looked at that way?

Mr. Greg Fyffe: In some ways it is, because we made the decision in this case to detain. We are detaining, but we have to go regularly before the adjudicator and prove that there is a continuing need to detain this person. That's what I referred to as the balance. The longer the person is detained, the more demanding, in a sense, is the process. Just as the person who is arrested has an opportunity for a bail hearing, the crown has to establish the case that the person is at some risk of flight.

The U.S. does detain extensively. It's very expensive, and they have facilities everywhere for detaining. It's a very controversial measure.

Mr. John Bryden: My problem with not detaining them is that we know if they go free, then they go into a type of slavery. So this is a case where detention is the merciful thing to do, surely.

Can we help you by framing legislation such that we define detention under these circumstances? The reality is, you can't prove absolutely that somebody is not going to flee, and consequently people flee. So is it not possible for us to set the terms in legislation that would permit you to detain these people indefinitely, at least until they're through the process? I would suggest to you that this would be one way of stopping the traffic, if we could hold them.

Mr. Greg Fyffe: If the question boils down to would it be useful to us to have the committee consider the question of what kind of detention regime and power might be looked at, the answer would be yes. I would add, however, that it's a very difficult question, because the whole issue of detention is very difficult. But it's certainly a key issue in this whole equation.

Mr. John Bryden: Thank you, Mr. Chair.

The Chair: John.

Mr. John McKay: I'd like to follow up on my other questions, but I'm not going to. Let me go to another one.

With regard to the eligibility decision by a senior immigration officer and a parallel American situation with the credible claim, what are the differences in the determination process?

Mr. Gerry Van Kessel: They're very different. The American credibility claim is designed to determine whether there is some foundation or some merit in the claim to protection that's being made by the claimant. That's what that is.

The question of eligibility really is not whether there's any merit at all. That issue is, under the Geneva convention there are certain people who are excluded from protection. That's what the issue of eligibility is—people who already have protection elsewhere, people who are serious criminals and so on.

So that's a totally different type of entry into the process or step that determines whether someone goes into the process. We in Canada, from I think 1989 or 1993—I forget the exact years—had a credible basis step in the process. However, because of court rulings, the threshold for determining whether there was a credible basis was so low the step was totally redundant. Therefore, we eliminated it, because if everybody has to go through a step where they come out at the end just going to the next step, what is the point of that step?

I realize that you're saying somewhat the same thing with respect to eligibility, but the eligibility is a provision built in around whether or not you have access to a system in which your claim to eligibility will be established, based on factors other than in fact credibility, or the merits of your claim.

The Chair: On behalf of my colleagues, I want to thank you very much, Mr. Fyffe and company, for a very informative meeting. It's the first meeting, I might add.

You probably would have seen by the nature of some of the questions that this is a very important issue to this committee. We serve the same master, so to speak—the people of Canada—to find those solutions that I think will make our refugee determination system one of the best in the world. I think you've already raised some of the issues that in fact you're looking at.

I would ask all of the members to stay here, because we haven't even passed our agenda. We started the work before formally adopting the study on the refugee determination system as well as illegal migration.

• 1710

You were very generous to offer us some of that judicial review with regard to some of those issues we were talking about. I wonder, though, because we are looking at this... You talked here about January 1999. I know you said it was here. But because we are looking at this and doing the study, do you have an issue paper you are already working on that perhaps you could supply us with—a short paper that would raise the major and pressing problems and the range of possible solutions you are looking at?

Secondly, I think we also asked you whether or not there was a way of being able to compare how different countries are dealing with certain things, for example, Australia, the United States, France, Germany, Great Britain, and so on. So if you have that wealth of information within your department, we'd very much like to have it.

Mr. Greg Fyffe: Mr. Chairman, we've undertaken to give you further information on this issue of interceptions at sea, and we'll do that. We've undertaken to give you a comprehensive comparison chart of other determination systems, and we'll do that.

There may be something further we can give you on some of the other issues that have come up that will expand a bit on the white paper.

When we appeared before the committee a couple of years ago, when you were doing the removals issue, we also supplied a paper on the removal steps and the different definitions and statistics. We will update that paper and supply that as well.

The Chair: Great. Thank you very much for your presentation and for providing us with some additional stuff. I'm sure we'll be back to you as we proceed on this particular study. So thank you very much.

Colleagues, I wonder if we could move to the orders of the day here and do what we should have done at the beginning, when we had a quorum and when the chair should have been in the seat—but the vice-chair was more than capable. I wonder if I could ask for the adoption of the first report of the subcommittee on agenda and procedure that you have before you.

Mr. Rick Limoges (Windsor—St. Clair, Lib.): I so move.

The Chair: Are there any objections to the first report?

(Motion agreed to)

The Chair: Second, is B., which is pursuant to Standing Order 108(2), a study on all aspects of... We've already done that. I just want to confirm it.

Some hon. members: Agreed.

The Chair: Oh, I'm sorry. I want to advise the committee that the minister is available on Wednesday the 24th at 3.30 p.m. on the performance report, as we requested.

We'll see you tomorrow morning at 151 Sparks, 705 La Promenade.

Thank you very much. The meeting is adjourned.