CIMM Committee Report

In the summer of 1999, the arrival off the shores of British Columbia of four boats carrying 599 migrants placed a spotlight on Canada’s immigration and refugee laws. The migrants, mostly Chinese and including a number of teenagers, arrived in leaky boats amid truly horrible conditions. None had travel or identity documents, and most made refugee claims when apprehended.

Canada has not been the only country to experience such boat arrivals. In the last 2 years, the United States has intercepted some 20 ships carrying over 1,200 people. In the period between July and October 1999, Australia saw the arrival of 28 boats, carrying over 900 people. Clearly, this phenomenon has international implications. Some solutions to the problems posed by the irregular arrivals of large numbers of migrants will no doubt be national ones, but certain aspects of the movement of migrants will best be approached on a multilateral and international basis, a process that has already begun.

When the boatloads of migrants arrived in Canada, the Canadian public was taken aback, as were many parliamentarians. Much of the debate that ensued was similar to that in the mid-1980s, when two other boats (carrying migrants not from China) had arrived off the East Coast. There were important differences this time, however, as it became known that the migrants had paid, or were liable for, enormous sums for their voyage (US$30,000 — $40,000 or more) and it appeared that the operations had been instigated by traffickers who would have controlled every aspect of the migrants’ lives until the debts were paid. Moreover, the end destination for many was apparently not Canada at all, but rather the United States, especially New York City.

The boat arrivals came at a time when the process of rethinking the Immigration Act was already well advanced. That process had begun in 1997 with the appointment of a three-person panel charged with reviewing all aspects of immigration law, policies and practices. Its members consulted widely and their report was publicly released in January 1998. The Minister of the time continued to consult the public, and in January 1999 released a discussion document that further contributed to the process. Thus, although the arrival of the four boats of migrants put pressure and additional public attention on Canada’s immigration and refugee systems, the process of review and reform was underway well before the summer of 1999.

The refugee claims from individuals on the four boats were fast-tracked, and most have now been heard. A handful of claims have been accepted, and many decisions have been reserved. A few of the individuals have been returned to China, but most remain in detention in British Columbia. While the issues surrounding the migrants’ arrival continue to be debated, passions have now cooled somewhat as the refugee claims have been processed in an orderly fashion in the intervening months.

It was in the above context that the House of Commons Standing Committee on Citizenship and Immigration decided to undertake this study on the refugee status determination system and the security of Canada’s borders. Our goal is to contribute to the ongoing reform process by taking a dispassionate look at some of the major issues before the government reaches final decisions on the content of the immigration bill soon to be presented to Parliament. This report is the second such contribution; in June 1998 we tabled a comprehensive study on immigration detention and removal in which we commented on the treatment of that topic in Not Just Numbers.

The Committee wishes at the outset to dispel any misconceptions that may have arisen because the Committee was studying the refugee determination system and border control at the same time. Any inference that all individuals arriving as migrants and claiming refugee status should simply be labelled "illegal" is wholly unwarranted. Even if refugee claimants’ manner of arrival is irregular, we recognize that the flight to freedom is often fraught with peril, speed and the necessity to use whatever means are available to reach safety. Once here, claimants have certain legal rights, and Canada has corresponding duties. Over the years, Canada has offered protection to many genuine refugees, and we feel strongly that Canada must continue to do so.

That being said, it would be naïve to maintain that the refugee system is free from exploitation by those who make unfounded claims to refugee status as a way of staying in the country, or, more recently, by those who wish to buy time until they can enter the United States. The problem — and the challenge — is to distinguish swiftly between those with genuine claims and those who would take advantage of a refugee system that is generally acknowledged to be one of the best in the world. The truth is that it is often not easy to tell the two groups apart. Both often use fraudulent documents; both often employ smugglers to assist them; both may tell similar stories. Sorting the true from the false, as well as judging whether claims with some merit are sufficiently compelling to meet the stringent refugee definition in our law, which is virtually identical to that in the Convention relating to the Status of Refugees, is the job of the Refugee Division of the Immigration and Refugee Board. In the first part of this report, we will focus on the work of the Board, as well as the refugee claimant procedures that lead up to it, in an effort to suggest how the process may be strengthened, streamlined and made more expeditious. Then we will turn our attention to how we may make our borders more secure so that those we wish to keep from coming here will be deterred and those we welcome will be facilitated.

Canadian law mandates a process for all individuals who arrive here and make a claim to protection on the basis that they fear persecution on specified grounds should they be returned to their country of origin. The law applies regardless of their manner of arrival, regardless of whether they have travel or identity documents, and regardless of their country of origin. Unless excluded from the process on criminal, security and certain other grounds, claimants are entitled to an oral hearing before two decision-makers of the Refugee Division of the Immigration and Refugee Board. A person who is found by the Board not to be a Convention refugee has a right to make an application for leave to apply for judicial review to the Federal Court — Trial Division. The leave provision is stringent, and few claimants are successful. A further appeal is available to the Federal Court of Appeal, but only if the lower court judge certifies that the case raises a serious question of general importance.

A. Detention

In contrast to the recent Chinese boat arrivals, most refugee claimants are currently not detained. The three grounds for detention in the Immigration Act are that:

the person is unlikely to appear for future immigration hearings or procedures; and/or

the person’s identity is unknown; and/or

the person is a danger to the public.

It would appear that the Chinese boat claimants were, for the most part, detained under the first two grounds and primarily, after the initial days, under the first. Why were they singled out for detention? The numbers arriving en masse in an organized fashion clearly indicated a possible trafficking situation. When most of the released claimants from the first boat disappeared, with the evidence suggesting that their ultimate destination was likely the United States, the argument that most claimants were flight risks became strong. In addition, it emerged that there was already a very high rate of abandonment of Chinese refugee claims in Vancouver.

The Committee believes that the government was correct in detaining the majority of the migrants who arrived on the boats, and that there was sufficient evidence of trafficking. We note the testimony of those witnesses who distinguished between the activities of smugglers and traffickers. The latter trade in human beings for their own profit. Their goal is not just to assist people to cross a border, something with which many genuine refugees require assistance. Rather, a trafficker’s goal is to exact extortionate sums from the individuals concerned by condemning them to an often lengthy period of virtual bondage in sweatshops, restaurants, or in prostitution.

Even without changing the law on detention, when there is evidence of trafficking, the migrants must be assumed to be flight risks and therefore lawfully subject to being detained if apprehended in Canada. Rigorous application of detention in these situations serves, in addition, another important goal by sending a message to both migrants and traffickers. For the migrants, detention upon arrival means that their economic goals in coming here are thwarted, whether those goals were to be achieved in Canada or the United States, and they are unable to use the refugee determination system solely as a means to access Canada. Future migrants would, it is hoped, be deterred from undertaking such a life-threatening and, for most, ultimately futile journey.

For the traffickers, detaining their human cargo removes the financial underpinning of the whole enterprise. Without the wages earned by migrants, trafficking becomes unprofitable. Thus, detention where circumstances suggest that trafficking is taking place serves important immigration purposes, besides being actually beneficial to the migrants themselves, most of whom may be assumed not to have realized the full implications of what they were getting into when they signed on to the trip.

If detention is to serve as a deterrent to future trafficking, the message must reach the target audience. As widespread a communications program as possible should be undertaken to inform potential traffickers and migrants of the dangers and consequences of such activities. Such a program should be accompanied by information videos in the appropriate languages. We recommend this course of action even though we know there could be significant difficulties with the approach in countries such as China. Nevertheless, it should be tried. Even if such a program has only moderate success, the actual fact of routinely detaining migrants caught in trafficking situations should ensure that the organizers of such ventures receive the message. Their use of sophisticated communications technologies and contacts on both sides of the ocean enable them to know exactly what is going on.

There is another group that the Committee feels should be detained as a matter of policy. Citizenship and Immigration officials informed us that some 8% of the individuals who make refugee claims are both undocumented and uncooperative. "Uncooperative" means that, in addition to arriving without any travel or identity documents (a common occurrence with those making refugee claims) the individuals refuse to answer the most routine questions put to them by immigration officials upon arrival, even as to what aircraft they arrived on and what country they came from. Even severely traumatized individuals should be able to respond to these simple questions.

These are people, therefore, about whom we know nothing. Not because they cannot tell us anything, but because they will not. In these circumstances, Canada has a right and duty not to release such people until we are sure who they are and that they pose no threat to society. The existing law already contains a provision that permits detention when a person is unable to satisfy an immigration officer with respect to his or her identity; however, it has been little used apart from this summer. In its report of June 1998, this Committee stated that to allow people about whom nothing is known to remain at large pending the hearing of their refugee claims strains public confidence and credulity. We recommended then the use of the existing power to detain until identity is known, and we reiterate this recommendation now.

If detention is to be used more frequently, it is very important that appropriate detention facilities be found, or built. Migrants must not be presumed to be criminals or security risks and so should not be housed in prisons. Makeshift or inadequate accommodations should be avoided. Facilities should be in locations where the claimants can have access to lawyers, community organizations and translators.

The Committee recommends that:

Refugee claimants who appear to be arriving as part of an organized trafficking operation be detained as flight risks until their refugee claims are fully disposed of.

The fact that "trafficked" migrants will very likely be detained upon apprehension in Canada be widely communicated in the migrants’ countries of origin, including by means of information videos.

Refugee claimants who refuse to cooperate in establishing their identity be detained.

Immigration detention facilities be found, or built, that are appropriate to the situation.

Initial Considerations Regarding a Refugee Claim

When individuals who are not admissible to Canada (including many refugee claimants) appear at ports of entry, they are referred to an immigration officer. If they make a refugee claim, a senior immigration officer is mandated to make a decision as to whether or not they are eligible to have their claim referred to the Immigration and Refugee Board. People who have already received refugee status elsewhere, those who are a threat to Canada because they are criminals, or those who are terrorists, spies and so on, are ineligible. It would appear, however, that the necessary checks are often not initiated until very much later so that individuals who should properly be excluded proceed to the determination of their claim.

The Committee supports the proposal in the government’s Discussion Paper of last year that criminal and security checks should be initiated at the very beginning of the process. It is a waste of the Board’s resources to examine ineligible claims. It is also resource intensive, legally complicated, and detrimental to public confidence to try at a later date to deport people who should never have proceeded through the entire system. The sooner we discover those who are ineligible to enter the process, or to become landed, the better.

We are not suggesting, however, that referral to the Board should wait for the results of all checks to be received. If the criminal and security checks subsequently turn up adverse information, the claimant should at that point be declared ineligible and the process stopped.

The Committee recommends that:

5. Criminal and security checks be initiated as soon as a person makes a claim to refugee status.

The Committee has concluded that certain other steps should be taken at the point where an individual first makes a refugee claim. First, fingerprints and photographs should be taken. Second, because of the number of claimants in some locations, the practice has developed of merely providing the claimants with the necessary documentation to fill out and then sending them on their way without any substantive interview. The Auditor General of Canada recommended in his 1997 report to Parliament on the processing of refugee claims that information relevant to a refugee claim should be gathered initially at the port of entry and provided to the Board. We agree with that recommendation.

The Committee’s witnesses did not concur on this point. One who supported it pointed out that truthful answers were more likely to be provided immediately upon arrival than later, following reflection and possibly advice from others. Another witness stated, however, that upon first arrival, genuine refugees may be very fearful of authority because of their previous experiences. This may lead them to hide the truth, or part of it, because they fear they might be immediately sent home. Women may be very reluctant to discuss certain types of persecution they have undergone; others might not realize that particular aspects of their story would be relevant to a claim. In short, there are many reasons why refugee claimants might not be forthcoming at an initial interview.

Despite this, the Committee thinks that immigration officers at ports of entry should take the time to question individuals in a general way about their claims, their travel routes to Canada, and other relevant matters. We believe that such interviews should be standardized so that they can be done expeditiously. All the details need not be gained at this point, just the broad outlines. Very importantly, the interviews should be done sensitively; this should in no way be an interrogation. Furthermore, to mitigate any fears they may have, claimants should be advised that they are not in danger of being sent home immediately. They should also be advised that it is important to answer all questions honestly and to the best of their ability at this stage. They should know that to be untruthful or uncooperative with the port of entry authorities will work against them when the time comes for the Board to determine their claims.

The Committee recommends that:

Refugee claimants’ fingerprints and photographs be taken at the first point of contact with immigration officials.

Immigration officers at ports of entry question refugee claimants to ascertain the general thrust of their refugee claims, their travel routes to Canada, and any other information relevant to their claims.

Questioning of refugee claimants at ports of entry be conducted in a sensitive and compassionate manner in recognition of the trauma that they may have suffered.

Refugee claimants be advised that it is important to answer all questions honestly and to the best of their ability at the port of entry and that to be untruthful or uncooperative with the authorities will work against them when the time comes for the Board to determine their claims.

The initial interview should also serve a third important purpose. As the immigration officer learns the general reasons for the person’s refugee claim, he or she will sometimes be in a position to make an initial assessment. The Committee believes that immigration officers should flag two kinds of claims for the Board.

First, there may be claims that, at least on their face, appear highly meritorious. Those claims should be identified for treatment as part of the Board’s expedited process, which we will discuss below. Moreover, the Committee believes that the government could go even further in identifying strong claims at a very early point. In our system, only Refugee Division members have the expertise, and the duty, to accept refugee claims. While lack of resources might prevent having members permanently located at the busiest ports of entry, some system of having designated members on call should be explored. Then, if an immigration officer identified a strong case, the member could be called, could interview the claimant, and could possibly accept the claim at that point, pending acceptable results on the eligibility criteria.

The other type of claim that immigration officers should flag at this early point is on the other end of the spectrum, those claims alleging persecution in countries that do not normally produce refugees. Whereas the purpose of early identification of meritorious claims is to conserve Board resources and recognize genuine refugees as soon as possible, the purpose of singling out claimants from countries that do not normally produce refugees is deterrence. If non-genuine claimants know that their claims will be dealt with as a matter of priority and their stay in the country will be brief, the incentive to use the system for economic reasons should be greatly diminished.

The Committee recommends that:

10. Immigration officers at the port of entry identify two types of claims for priority processing at the Board:

claims that appear highly meritorious; and

claims that allege persecution in countries that are not normally refugee-producing.

11. The government explore the feasibility of having designated Refugee Division members on call for cases where immigration officers identify strong refugee claims during the course of their interviews at the port of entry.

The Committee alluded previously to the duty of senior immigration officers to determine whether or not a claimant is eligible to make a refugee claim. In addition to criminal and security exclusions, there are other more straightforward matters that require attention, such as whether or not the claimant has been recognized as a refugee elsewhere (and therefore does not require Canada’s protection), whether or not the claimant may make a repeat claim, and so on. The initial interview should also be used to discover these objective facts regarding eligibility, thus enabling the immediate transfer of the file to the Board, rather than, as is currently done in some locations, waiting for the claimant to fill in required forms and return them to the officials. It is important for Citizenship and Immigration Canada to forward refugee claims to the Board as quickly as possible. In this way, some of the delays in the current system could be eliminated. As an additional benefit, legitimate refugees would be all the closer to being accepted and beginning their new lives.

The Committee recommends that:

12. The senior immigration officer at the port of entry ascertain the objective facts regarding eligibility from the initial interview, thus enabling the immediate transfer of the file to the Board.

The Committee has concluded that certain aspects of the eligibility criteria should be modified. Currently, any rejected claimant who has been out of Canada for more than 90 days may return to Canada and make another claim. The result is a "revolving door," which, in theory at least, could revolve indefinitely. Although repeat claims are not a substantial percentage of total claims, we have been informed that the number has been growing. We recommend that the period between repeat claims should be lengthened to one year and that the procedure should be changed. Instead of granting access to the Board for a full hearing, we agree with Citizenship and Immigration Canada’s proposal that there should be only a pre-removal risk review. This review would look at whether there was any new evidence regarding the claim and whether there had been a change of circumstances in the person’s country of origin. If not, the person would be removed.

The objection to this recommendation is that the system is defective in catching mistakes so that repeat claims are essential for this purpose. This would be compelling were it not for the institution of the appeal mechanism that we discuss below. With this mechanism, we feel confident that a summary procedure for dealing with repeat claims would be a reasonable way to conserve resources and discourage the revolving door strategy employed by some claimants.

We also agree with the government that the eligibility criteria should be expanded to preclude refugee claims from those who are believed on reasonable grounds to be engaged in organized crime. Because the ambit of "organized crime" can be broad, the existing safeguard should remain: in order to be excluded from access to the refugee determination system, the claimant would have to be declared to be a danger to the public in Canada or the decision would have to be made that it would be contrary to the public interest to have the claim determined.

There is an important eligibility criterion that has been in the law since its inception in 1989 but which has never been operational. We speak of the "safe country rule" that excludes from the refugee system those claimants who have come through a country that complies with the central requirement of the Convention relating to the Status of Refugees not to return refugees to countries where they fear persecution on specified grounds. The theory is that refugees ought to seek protection when they can, rather than selecting where they wish to go or where they think their chances of acceptance might be greatest.

Most knowledgeable observers have always recognized that, for the safe country return provisions to work, they must be accompanied by bilateral or multilateral agreements regarding the return of claimants. Otherwise, claimants run the risk of being placed "in orbit," that is, being bounced from country to country with no country willing to take responsibility for adjudicating the claim. Hence, the need for agreements to ensure that this is done and the Convention respected.

Over the years, Canada has attempted to negotiate agreements with other countries, and came close to concluding one with the United States several years ago. The Committee feels that the government should continue actively to pursue agreements wherever possible, and that the safe country provision should be left in the law in the hope that it will become possible to implement it in the future. Further, we believe that Citizenship and Immigration Canada should report all progress in this matter to the House of Commons and to this Committee.

The Committee wishes to address one further matter before discussing the refugee hearing itself. Currently, there is no time limit for making a refugee claim. While most claimants state their intentions upon arrival, there is nothing to preclude assertion of a refugee claim at any time. Thus, people who come to the attention of the immigration enforcement system for any reason, including criminality or security concerns, even those who have been in the country for years, may make a claim at any time before a removal order is actually issued. We see no reason for this situation to continue.

The Committee recognizes that there will be legitimate reasons for an individual to delay making a refugee claim. These should be allowed. However, we agree with the government that a time limit of 30 days following arrival should be the general requirement.

The Committee recommends that:

The period required between repeat refugee claims be lengthened to one year.

Instead of access to the Board for a full hearing, repeat claimants receive a pre-removal risk review. This review would examine whether there was any new evidence regarding the claim and whether there had been a change of circumstances in the person’s country of origin. If not, the person would be removed.

The criteria regarding eligibility to make a refugee claim be expanded to preclude claims from those who are believed on reasonable grounds to be engaged in organized crime.

 

Although to date it has not been operational, the safe country return provision remain in the law and the government actively continue to pursue bilateral and multilateral agreements concerning safe country return provisions.

The government report the progress made, and all safe country return agreements reached, to the House of Commons and the Standing Committee on Citizenship and Immigration on an annual basis.

There be a time limit of 30 days following arrival in Canada within which an individual would be required to make a refugee claim. An exception should be made where there exist compelling circumstances in a claimant’s situation.

The Refugee Hearing

The goal of the Refugee Division is to deliver fair and well-founded decisions on refugee claims as expeditiously as possible. Hearing procedures should be designed to accomplish that goal using the fewest resources. For that reason, the Committee wishes to return to a proposal first made by the government in 1995. The proposal was to move from a two-member panel as the norm at the Refugee Division to a one-member panel.

Introducing a one-member panel would accomplish several things. Clearly, it would enable the Board to hear more cases, provided that additional personnel, such as refugee claim officers, were available. It would also make scheduling claims and adjournments much simpler. The Board should, however, have the power to assign a three-member panel to hear test cases or cases that pose particular difficulties.

When the proposal to move to one-member panels was first advanced there was strong criticism from refugee advocates. In their view, many members of the Refugee Division were not capable of making such an important judgment, and writing a reasoned decision, on their own. Further, they argued that without an adequate appeal mechanism, it was very difficult to correct faulty decision-making in the first instance. We are convinced that if both of those issues were addressed, one-member panels would be viable. We believe that the calibre of members appointed has improved significantly in recent years, and measures are discussed below that would ensure that this improvement continues.

Most important, the Committee recommends that the time has come to introduce a substantive appeal mechanism for refugee decisions. For years, refugee advocates and commentators have strongly criticized the lack of such a mechanism and the necessity of taking refused cases to the Federal Court, with leave. An internal appeal structure at the Board would serve a number of purposes. It would provide a safety net for refused claimants so that clear errors could be corrected relatively quickly without the necessity of court action. It would therefore cut down on the number of cases that proceed to the Federal Court. It would also foster consistency in decision making. Inconsistent decisions from the different regions of the country and with regard to claimants in similar situations is a challenge that the Board has identified and has been addressing for some time now through various measures. A review panel of high quality could contribute significantly to those measures. For the appeal mechanism to succeed, only the most experienced members should be appointed.

The Committee recommends that:

The Refugee Division sit in one-member panels, with the option of sitting in three-member panels to hear test cases or cases that pose particular difficulties.

There be an internal appeal structure at the Board for rejected refugee claimants, to which only the most experienced members be appointed.

One of the reasons that the refugee determination process is so complicated is the number of steps involved in the assessment of risk. Obviously, to determine whether claimants are Convention refugees is to assess the risk of persecution should they be returned to their country of origin. Failed claimants may then apply to Citizenship and Immigration Canada for another risk review that, as the Auditor General noted in 1997, generally addresses the same facts that were in issue in the refugee hearing. There are also certain risk aspects to the humanitarian and compassionate application that all individuals to be removed are entitled to make to the government.

In our 1998 report, this Committee recommended that the Refugee Division should make all of the risk-related decisions concerning an individual. They are the experts; they have heard the oral testimony. A new appeal procedure would foster consistency in this area as well.

The Committee recommends that:

21. All of the risk-related decisions concerning an individual be consolidated at the Refugee Division.

Earlier, the Committee made recommendations aimed at a more productive use of officers at the port of entry. In particular, we recommended a standardized interview that would cover, in addition to personal information about the claimant, general details relating to the claim. We recommended the early identification of claims that appear meritorious so that refugee claim officers (RCOs) at the Refugee Division can more quickly assess whether the claims should go through the expedited process. This process involves a review and assessment of the claim by an RCO. Where a claim is felt to be strong, the RCO passes the file to a member who, if he or she agrees, accepts the claim without a hearing.

In the past, there were more expedited hearings than there are currently. (Now only about 10% of claims are handled this way.) Increasing this percentage, provided the integrity of the decision making can be preserved, should be a Board goal. Clearly, increasing the use of the expedited process would save significant resources for the Board. For genuine refugees, the process offers an earlier resolution of their cases and should help to ease their adjustment to Canadian life.

The Committee recommends that:

22. The Refugee Division strive to increase the percentage of claims handled through the expedited process.

We also recommended the early identification of claims that allege persecution in countries that are not normally refugee-producing. These claims clearly have to proceed to a full hearing, but they should do so as quickly as possible. Speedy determination of these types of claim, coupled with faster removal of claimants who receive negative decisions, would send a message that individuals have little to gain by making a pro forma refugee claim in order to stay in the country. Ultimately, these types of claims should diminish, saving resources and leaving the refugee determination process available for those who truly need it.

In its Discussion Paper, Citizenship and Immigration Canada proposed that certain restrictions on the ability of the government to participate in Board hearings should be eliminated. Currently, the Minister’s representative may give evidence in all cases, but may not participate further without the permission of the members hearing the case. Full rights to present evidence, question the claimant and any witnesses, and make representations are reserved for situations in which the exclusion clauses of the Convention are in issue.

The Committee has concluded that these restrictions are somewhat artificial and should be eliminated. The government should have full participation rights at any hearing that it identifies as important. The Refugee Division members retain full control of the hearing and we do not see that extending existing participation rights will significantly change the nature of the hearing. Having said that, we recommend that the government be more active in choosing cases in which to intervene than it has been in the past.

In a similar vein, the Committee agrees with the recommendation in the government’s Discussion Paper for the Minister to be permitted to institute proceedings to vacate a decision that a person is a Convention refugee without first seeking the permission of the Chairperson of the Board. These cases involve allegations that the determination was obtained by fraudulent means, or misrepresentation, suppression or concealment of any material fact. They are required to be heard by a panel of three, which we consider to be a sufficient safeguard. As we did above, the Committee recommends that Citizenship and Immigration Canada be more alert to cases in which the vacation procedure would be appropriate.

The Committee recommends that:

The current restrictions on the participation of the Minister’s representative in a refugee hearing be eliminated and the government be more active than it has been in the past in choosing cases in which to intervene, while maintaining the independence of the Board.

The Minister be permitted to institute proceedings to vacate a decision that a person is a Convention refugee without first seeking the permission of the Chairperson of the Board. Citizenship and Immigration Canada should be more alert to cases in which the vacation procedure would be appropriate.

Finally, the Committee would like to comment on the quality of the information provided to Board members. In refugee determination, solid, factual and up-to-date information about country conditions is essential. This information is provided by the Board’s Research Directorate, which is well respected. One of our witnesses pointed out, however, that in his view more use could be made of the overseas capacity of the Department of Foreign Affairs and International Trade to provide information directly to the Board. He urged that there be more of an effort on the part of our missions abroad to provide timely and relevant information on country conditions, and individual cases where appropriate.

The Committee recommends that:

25. The Department of Foreign Affairs and International Trade provide timely and relevant information on country conditions and individual cases directly to the Immigration and Refugee Board.

Other Matters Related to the Refugee Determination System

Since the inception of the Immigration and Refugee Board 11 years ago, many commentators have expressed concerns about how Board members are chosen, their training, and their fitness for the heavy responsibilities of the position. Over the years, the appointment process has been improved by the addition of a Ministerial Advisory Committee which assesses all appointments and reappointments, by upgraded training programs for new members, and by the introduction of performance appraisals.

A number of our witnesses were convinced, however, that the process still needs improvement. When decisions relate to people’s security and even their lives, the decision-makers must be of the very highest calibre. This will be all the more important if our previous recommendation to introduce single-member panels is accepted. Each and every Board member will have to be skilled at presiding over a hearing; he or she will have to be able to assimilate and weigh evidence, apply knowledge gained from external sources to the facts at hand, and reach a just decision. In addition to those procedural and analytical skills, members must exhibit sensitivity and an understanding of cultural differences, particularly those that cause misunderstandings when individuals from one culture attempt to communicate with those from another. Thus, the Board must continue to focus on and upgrade the training and professional development of its members.

It takes time, possibly a full year, for new Board members to be trained and to gain the experience necessary to become fully functional decision-makers. It is likely only in the second year of an appointment that the Board, and the members themselves, can know whether it will be a success. It makes sense, therefore, to appoint members to relatively short initial terms of perhaps two years. For members who have proved themselves at that point, however, longer terms are appropriate and provide stability to the Board.

The Committee recommends that:

Appointments to the Immigration and Refugee Board be based on merit so that all members of the Board are of the highest possible calibre.

The Immigration and Refugee Board continue to focus on and upgrade the training and professional development of its members.

Initial appointments to the Board be relatively short but successful members be reappointed to longer terms.

Following a hearing by the Refugee Division (or a decision, if the expedited process has been used) a claimant is recognized as a Convention refugee or is refused. As discussed above, a failed claimant has several options; however, most individuals in this situation become removable from Canada. It is often at that point that the process breaks down. Claimants not in detention (the vast majority under normal circumstances) will often fail to report to immigration officials to discuss removal plans or, having reported, will not carry out their commitments. Thus, Canada has no way of knowing for sure the whereabouts of many failed claimants, or whether they have indeed left the country.

The Committee received several suggestions as to how the government could remove more failed refugee claimants from Canada, and there could well be other possibilities. For example, claimants could be required to appear in person to receive the final decision on their claims. At that point, immigration officials could proceed as dictated by the facts of the situation, whether by holding a meeting, arranging for security to be posted to foster compliance with removal proceedings or, in some cases, by ordering detention pending removal. This process would have to recognize the independence of the Board from the government, and any actual procedures would have to take place in different premises. Whatever mechanism might be chosen, however, the important point is that too many failed refugee claimants are at present being allowed to fall through the cracks by "disappearing" once they realize that their time in Canada may be coming to an end.

The protection of Canada’s borders often begins thousands of miles away. Transportation companies are under a legal duty to ensure that the people they bring to Canada have the required documentation. Canada works with airlines to train personnel in the requirements of Canadian law and in how to identify documents that are false or have been tampered with.

One of our witnesses from the airline industry spoke of the annoyance of some passengers whose documents receive close scrutiny. He recommended that the government prepare a multilingual pamphlet to explain that airlines act as agents for the government in ensuring that the requirements of Canadian law concerning travel documents are met. Perhaps this could be undertaken as a joint project between the government and the industry.

In order to enhance document verification, over 20 Canadian immigration control officers (ICOs) are stationed abroad to assist local authorities in intercepting improperly documented individuals and preventing them from boarding planes bound for Canada. During 1998, some 6,300 improperly documented passengers were intercepted. This program clearly works well and should be expanded. Representatives of the airline industry even suggested that in locations with no ICOs, a telephone hotline should be in place to allow officials to consult with an ICO and make use of his or her expertise.

At the same time, we are aware that many refugee advocates urge that interdiction actions should not have the effect of eliminating a person’s chances for asylum. The government’s response is that CIC officials refer intercepted passengers who indicate a fear of persecution to the United Nations High Commissioner for Refugees or to a Canadian foreign mission. A witness familiar with the ICO program suggested, however, that such information does not appear to be regularly given to those denied the opportunity to board a plane. The government should, therefore, instruct its ICOs abroad to provide this information routinely to all intercepted passengers; it should also try to ensure that airline agents receive the same instructions in locations without ICOs.

In its 1998 report, this Committee recommended that Citizenship and Immigration Canada, in cooperation with airline carriers, should investigate the feasibility of instituting, a system to scan the travel documents of people coming to Canada on flights that have presented control problems. This would establish beyond doubt the airline a person arrived on, the point of embarkation, and the identity claimed when boarding the aircraft. Having greater knowledge of the documents could also aid Canada’s efforts to identify the patterns used by document forging rings. The government advised the Committee that this idea is under active discussion. The Committee urges the Department to press ahead to identify the appropriate technology and begin the necessary pilot project.

There are additional measures that can respond to the use by travellers to Canada of false or altered documents or no documents at all. First, it should be noted that all passengers to Canada require travel documents in order to board an airplane. Those who arrive at the initial inspection point in Canada without documents must therefore have disposed of them in some manner after departure. Document checks of disembarking passengers on selected flights by Canadian immigration officials at major airports have apparently been successful in forestalling disposal in a number of cases. Those individuals are still legally able to make a refugee claim, but the documents may be useful in revealing additional information. Even if the documents are completely false, their confiscation takes them out of circulation and prevents their reuse. The Committee therefore supports the expansion of disembarkation checks for flights whose past history has been problematic.

Trying to stay ahead of those who make it their business to forge or tamper with documents takes skill and tenacity. Often, the government has to play catch-up, because enhanced security features introduced on a document become a challenge to those whose interest is in duplicating the results. The challenge is often successful, and sometimes not.

It would appear that some Canadian documents are more secure than others. A representative of the air transportation industry pointed to the defects in the IMM 1000 permanent resident card, which has no photo identification and no modern biometric or other high-tech validation techniques. As a result, it is very vulnerable to unauthorized use or fraudulent duplication. According to the industry, the technology exists to replace the card, but the Department lacks the resources to do so. In the budget of February 2000, Citizenship and Immigration Canada received additional funds for enforcement. The Committee recommends that the replacement of the IMM 1000 permanent resident card be made a high priority.

The Committee recommends that:

30. The government and the airline industry examine the feasibility of preparing a multilingual pamphlet explaining to passengers that airlines act as agents for the government in ensuring that the requirements of Canadian law concerning the required travel documents are met.

31. The stationing of Canadian immigration control officers (ICOs) abroad to intercept improperly documented passengers before they can board airplanes for Canada be expanded. The possibility of links, such as a telephone hotline, between locations with an ICO and those without should be explored.

32. Passengers who are intercepted and not allowed to proceed to Canada be referred to Canadian missions or to the United Nations High Commissioner for Refugees.

33. Citizenship and Immigration Canada make it a high priority to continue researching technology for scanning the travel documents of people coming to Canada on flights that have presented control problems. A pilot project should begin as soon as possible.

34. Citizenship and Immigration Canada expand the practice of document checks for passengers disembarking from flights that have presented problems.

35. Citizenship and Immigration Canada continue its efforts to enhance the security features on all its official documents, making replacement of the IMM 1000 permanent resident card a high priority.

Targeting People Traffickers and Smugglers

Many of the measures already recommended in this report are intended to make people trafficking and smuggling less successful, less lucrative and, consequently, less frequent. In this section, we discuss additional measures aimed more directly at these activities. Our recommendations involve increasing the penalties and other consequences for those convicted, and creating two new offences.

As we noted above, the penalties for organizing the entry of improperly documented individuals are high, with a potential fine of $500,000 and/or 10 years in jail where groups of 10 or more people are involved. We agree with the government that there is a gap in the penalty provisions. Though vehicles used in the commission of those offences may now be seized as forfeit, the law makes no provision for the confiscation of other assets purchased from the proceeds of the illegal activities. As it stands to reason that many smugglers are either based in Canada, or have Canadian connections, and because we know that this is a very lucrative business, the Committee believes that it would make sense to permit the proceeds of those crimes to be attacked. The Committee also believes, moreover, that any money recovered should revert to Citizenship and Immigration Canada to be added to their enforcement resources.

The Committee also agrees that people who are believed on reasonable grounds to be guilty of such offences should be inadmissible to Canada, if abroad, or removable from Canada if already here.

As we noted previously, there are high penalties for assisting the entry of people into Canada without the required documents. Once in Canada, however, these individuals are often transported across the country, whether their destination is elsewhere in Canada, or in the United States. The Committee believes that to effectively combat trafficking this activity, even if entirely within Canada, should also be against the law.

Finally, the Committee supports the recommendation that there should be a new immigration offence of assisting others to come to Canada through fraud or misrepresentation. There is already an offence of counselling individuals to make false statements in connection with refugee claims, but nothing that directly covers fraud or misrepresentation in connection with other matters.

In a related matter, it happens frequently that Canadians will sponsor an overseas relative for a visit to Canada. From time to time, the visitor then makes a refugee claim. The Committee recommends that, where the individual turns out not to have been a genuine visitor, some measure of accountability should be placed on the sponsor. For example, if the claimant requires social assistance while the claim is being processed, the sponsor might be required to reimburse the government.

The Committee recommends that:

/36. The law governing the proceeds of crime be extended to proceeds from immigration offences relating to organizing the entry into Canada of those without the proper documents. Any proceeds recovered should revert to Citizenship and Immigration Canada to be added to their enforcement resources.

37. Individuals who are convicted of immigration offences relating to organizing the entry into Canada of those without proper documents be inadmissible to Canada if abroad, or removable from Canada if already in the country.

38. There be a new offence, with significant penalties, in both the Criminal Code and the Immigration Act for assisting in the trafficking of human beings on Canadian territory.

39. There be a new offence for people who assist others to come to Canada through fraud or misrepresentation.

40. Measures be introduced to hold financially accountable those in Canada who sponsor visitors who later prove not to have been genuine.

Concerns of the Transportation Companies

The Committee heard testimony from representatives of the shipping and air transport sectors of the transportation industry. Many of their concerns have persisted for years; indeed, we noted them in our 1998 report. These issues have also been the subject of frequent discussions with Citizenship and Immigration Canada. From its brief examination, the Committee does not feel able to comment on the details of the proposals made to us by those representatives. We have concluded, however, as we did in 1998, that Citizenship and Immigration Canada and the industry must do more to work out the ongoing problems. For example, we agree with those who testified that it is unfair and unacceptable to present carriers with extremely large bills for the costs of removing inadmissible individuals many years after their arrival in Canada.

The Committee recommends that:

41. Citizenship and Immigration Canada work with the transportation industry to resolve their longstanding complaints, particularly those that result from delays in government-mandated processes that are beyond the control of the industry.

International Cooperation

Virtually every expert who has studied the problems of human trafficking and the irregular movement of migrants agrees that their solution requires international cooperation. The United Nations estimates that up to 4 million people are smuggled across national borders each year, an activity that may be worth some $10 billion annually.

Canada is playing an active role in developing the protocols on Smuggling of Migrants and Trafficking in Human Beings Especially Women and Children that are to accompany the United Nations draft Convention against Transnational Organized Crime. The Convention and its protocols should aid considerably in the fight against trafficking in people.

Canada and the United States have been making progress on the "Border Vision" initiative, begun in 1997, which is a joint project of Citizenship and Immigration Canada, the U.S. Immigration and Naturalization Service, and the U.S. State Department for improving the security of the whole region. Areas of cooperation include information and technology exchange, overseas interdiction, exchanging intelligence data, visa coordination, and studying the challenges at the land border, including the smuggling of people. We saw this past summer how important cooperation and coordination by the air and sea patrols of our coastline can be.

In our 1998 report, the Committee suggested that one method of combating people trafficking and smuggling would be for the Canadian government to urge other countries to create a criminal offence of organizing, or conspiring to organize, the illegal entry of individuals into another country. We make that recommendation again now.

At the beginning of this report, the Committee recommended that the government institute as widespread a communications program as possible in countries that have proven problematic, in order to inform potential traffickers and their customers of the dangers and consequences of their undertakings. There is another side of the coin, however. When migration from a particular country is driven by human rights abuses, Canada should do all it can to encourage that country to improve its human rights record. Migration results from both "push" and "pull" factors; working to eliminate the factors that impel people to leave their countries of origin can have only beneficial effects for all concerned.

The Committee realizes the complexity and difficulty of the problems posed by border security in an age where people move across continents daily. The challenges are also international in scope. Technologies that revolutionize government communications and the security features of documents also find their way into the arsenals of traffickers and smugglers. Cooperation between countries is essential, yet can be long in coming and imperfect. Meanwhile, individuals and criminal organizations intent on breaking laws are often nimble enough to evade controls and achieve their aims.

At the same time, it is vital that individuals who fear persecution in their countries of origin continue to be able to find a safe haven. Interdiction activities, while important, must take into account the need to be alert to the problems of genuine refugees. In streamlining the refugee status determination system, speed must always be balanced with fairness.

Recognizing these complexities, the Committee has not been able to recommend any magical cures or "quick fixes." The process of improving our border security and refining our refugee determination system will be ongoing over time. The Committee hopes that this report will contribute to that process.

The Committee is aware that a number of the changes in law and policies that we have recommended will have resource implications. These implications necessarily begin with the responsibilities of Citizenship and Immigration Canada. The resource requirements extend beyond the department, however, to the other partners who cooperate in delivering the immigration and refugee program, in particular the Canadian Security and Intelligence Service and the RCMP. Their intelligence-gathering functions are essential to the program, but modern intelligence-gathering is very dependent on technology that must be kept current. We therefore recommend that the government of Canada make available the necessary resources so that those agencies may modernize their technological capacities in order to meet the challenges posed by traffickers in people and ensure the safety and security of Canada and its people.