CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 8, 2001

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[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good morning, colleagues, Minister, and others.

Minister, I know you have some opening remarks, as we have your notes here, but I whether I can just make a couple of comments.

First of all, I want to thank all the members of the committee for working terribly hard over the last week in terms of our travels and hearing witnesses. It was a great spirit of cooperation, a good spirit of wanting to work together to create and make sure that we have the best possible bill for this country.

I want to tell you, Minister—I think I can speak on behalf of the committee—that we were very, very impressed with the quality of the submissions that were given to us, not only here in Ottawa, but throughout the country. They were exceptional in their vision and detail. In fact they were most inspiring for some of us, as they indicate how much support there is across this country from the very people who work day by day in helping not only immigrants, but also refugees to this country. I can tell you that their inspiration was hard not to notice. They spoke in glowing terms of Canada's proud history of immigration, how immigrants have helped build this country, and of how they were proud about our strong and historical position in the world in terms of refugee protection.

If there was one message that I thought came clear—with the exception of a few people who said that we didn't need any immigration whatsoever, but those were only two or three in number out of the 154 that in fact had made presentations—it was that a lot of people said we need more immigration. They feel that our system is one of the best, but obviously needs to be improved, and that this bill—to catch a phrase that was given to us a couple of times—should be motivated not by fear of making sure that we're able to remove those people who perhaps have human rights abuses or criminality, but rather it should dwell on the 99.99% of the people who in fact are hard-working and contribute greatly. Therefore, the bill ought to be motivated not by fear, but inspired by hope and the building of a great country through immigration.

Minister, I know that after your remarks and discussions with the department and the IRB, this committee intends to work on Thursday to have a brainstorming session of our own, because we have heard a number of excellent suggestions, and to start clause-by-clause next week. So we look forward to your comments, Minister, and thank you very much for attending this morning.

Hon. Elinor Caplan (Minister of Citizenship and Immigration): Thank you very much, Mr. Chairman. Thank you for those comments.

I think all Canadians should be proud of our tradition of openness and welcoming to newcomers. This bill builds on that prior tradition.

[Translation]

Thank you, Mr. Chairman.

Colleagues, I'd like to thank you for this opportunity to talk to you about Bill C-11. I am very happy to be here and to be able to answer your questions.

[English]

Let me begin by expressing my gratitude to you and to the members of the committee for this second opportunity to participate in your review of Bill C-11, the Immigration and Refugee Protection Act.

• 0845

When I last attended your proceedings, I focused my remarks on the changes between this bill and the previous bill put before Parliament. In doing so, I emphasized the balance that is so important to our immigration and refugee protection programs. This is the balance between tough, targeted measures to curb criminal abuse of our immigration and refugee systems, and strengthened efforts to attract skilled workers, ease family reunification, and offer safe haven to those in genuine need of our protection, in order to advance Canada's social, cultural, and economic development. In short, it is closing the back door to those who would abuse our generosity, so that we can open the front door wider to the immigrants and refugees who will continue to build our country.

Bill C-11 reflects that balance. It introduces many significant and long-awaited reforms to the Immigration Act that Canadians have recommended through consultations over the past five years. These reforms will be vital to ensuring that our immigration and refugee protection program will be effective in meeting the challenges and opportunities of a global environment that is very different from what it was 25 years ago, when the current act was introduced.

I'd like to take a moment to touch on just a few of the most critical provisions.

As you know, Bill C-11 and its accompanying regulations will eliminate the national occupation classification, which currently limits access to our immigration system to those on an occupation list based on a dated assessment of Canada's labour market needs.

This is perhaps the most significant reform to the immigration system in a generation. The new points grid will open the front door wider, to a wider range of skilled immigrants with flexible and transferable skills. This change, along with corresponding changes to give weight to experience and training in the skilled trades and to the importance of spousal education levels, will be a crucial step to see that Canada is able to compete in the global market for skilled labour.

Bill C-11 and its accompanying regulations will also allow for faster family reunification by reducing the length of sponsorship for spouses and partners from ten years to three years, by creating an in-Canada landing class, by opening up adoption provisions, and by offering common-law and same-sex partners equivalent status.

For refugee families Bill C-11 offers a one-year window of opportunity to include family members on their application, so that they can be landed together, avoiding longer processes of sponsorship later on. It also introduces front-end security screening, which should reduce the time it takes for convention refugees and protected persons to obtain permanent resident status.

Bill C-11 and its regulations will strengthen the role of the Immigration and Refugee Board, the independent decision-making authority at the heart of our refugee system that is widely recognized as a model for the world.

Bill C-11 will create a new Refugee Appeal Division at the IRB to hear appeals on merit for decisions on refugee claims, rendering the system both faster and fairer by providing a mechanism to correct error in the first instance.

These are just a few of the important measures that Bill C-11 will bring into effect. You are of course aware of so many other provisions that you have been discussing now for several weeks. Indeed, I must here pause and recognize and thank the members of the committee for all their hard work, particularly through what I understand, Mr. Chair, has been a rigorous travel schedule.

I know that witnesses appearing before this committee have raised a number of concerns, and I'd like to use the remainder of my time for these opening remarks to respond to those concerns.

First, it's been pointed out that the objectives to Bill C-11 make no explicit mention of Canada's proud commitment to multiculturalism. I agree that they should.

Similarly, concerns have been raised about the extent to which Bill C-11 affirms the Government of Canada's commitment to its official languages policy. One suggestion that has been put forward would include in the bill some reference to the importance of supporting and assisting the development of official languages communities in Canada, along with an explicit statement that this new act will support the government's commitment to enhance the vitality of the English and French linguistic minority communities in Canada. I welcome this addition to the bill.

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I know you've heard concerns about the scope of the regulation-making authority in Bill C-ll. Moreover, I understand that you've heard a proposal to limit the general regulation-making authority in this bill, in order to confirm that all matters affecting fundamental principles, rights, and freedoms are only found in the act itself. Here too I can say that this is a clarification of policy intent that I welcome.

I am told you've heard much on the subject of examinations. The policy intent in these sections of the bill is simply to see that our officers have the tools they need to enforce the law and maintain the integrity of our immigration and refugee programs. Allegations have been made about the powers of arbitrary arrest and compelled examination. In particular, amendments have been suggested to limit the authority of officers to conduct examinations where persons have made an immigration application and to underline that during these examinations only will there be a requirement that questions be answered truthfully. I consider these consistent with the policy intent of Bill C-11 and welcome clarification in that regard.

I understand you've also heard about potential limitations on the ability of a person or persons to apply to the minister or her designate for a humanitarian and compassionate review. Some proposed removing any such authority so as to limit access to agency procedures by regulation. Here too I can say that I agree.

With respect to the issue of access to the refugee determination system, I know concerns have been raised about the possibility of denying access to protection or permanent resident status to genuine refugees because an accompanying family member may be inadmissible. It has been suggested that the policy intent of Bill C-11 could be clarified with an explicit exemption for refugees from this provision. I welcome this addition to the bill itself.

Finally, I'm aware of the concerns you have discussed with respect to the authority of immigration officers to issue removal orders to permanent residents convicted of serious crimes. Here let me reiterate that the policy intent has always been to ensure that final decisions on inadmissibility of permanent residents who have been convicted of a serious crime are made at a hearing before an independent adjudicator at the Immigration and Refugee Board, and I agree that this needs clarification.

Mr. Chair, colleagues, before taking your questions, I must address two concerns that have been raised in relation to two provisions that I consider fundamental to the central policy objectives of this bill.

The first of these is the provision requiring leave to the Federal Court for judicial review of decisions by visa officers abroad. Some have claimed that this will insulate immigration officers from effective supervision. This is simply false. The current leave provision exists for all decisions made by immigration officers in Canada. I do not believe that individuals abroad should have greater access to the Federal Court than those in Canada.

The leave provision in Bill C-11 is simply a screening mechanism to see that the time of the Federal Court is not used frivolously. Meritorious cases will continue to have access to the court, as they do now, with in-land decisions. Indeed, at the request of the Canadian Bar Association, Bill C-11 expands the application period from 15 days to 60 days, thereby allowing ample time for applicants abroad to exercise their right to apply for judicial review with leave. Here it is important to note that the judicial review can only send a decision back for redetermination. By contrast, the establishment of an alternate dispute resolution mechanism will allow for a substitution of an original decision, as warranted. For this reason I have made a commitment to working with immigration practitioners to develop an effective ADR process, providing faster service to clients and with the hope of reducing the caseload at the Federal Court. I reiterate that commitment this morning.

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Finally, I must respond to the concerns you have heard about the elimination of appeals to the immigration appeal division of the IRB for serious criminals. This change is a direct response to the concern expressed by Canadians across the country that serious criminals and those who pose a security risk to Canada be removed from our country as quickly as possible. At present the process to remove an individual who is criminally inadmissible to Canada can take several years. This is simply unacceptable. Yes, decisions on inadmissibility of permanent residents convicted of serious crimes should only be made at an admissibility hearing before the independent IRB adjudicator. All individuals will continue to have access to judicial review of that decision at the Federal Court. And of course, immigration officers will have the discretion as to whether or not to proceed with enforcement action in these cases involving long-term permanent residents. As in all cases, there will always remain a final appeal to the minister.

But, colleagues, we must be able to say no more quickly, in order to remove serious criminals from Canada, if we want to be able to say yes more often to the immigrants and refugees who will continue to build our country. In my view, the importance of this link must not be underestimated. Indeed, let me conclude by underlining my commitment to increasing our annual immigration levels to one percent of our population over the long run. I am convinced that our ability to meet this objective will be vital to Canada's future, but if we are to meet this critical challenge, it will be essential to maintain the confidence of Canadians in the integrity of our programs. It really is that simple. To welcome the increased numbers of new arrivals each year, we must be able to remove serious criminals and threats to Canada's security more quickly. Bill C-11 will give us the tools we need to achieve both of these important goals.

Thank you very much, Mr. Chairman.

[Translation]

I'll be happy to answer your questions.

[English]

The Chair: Thank you, Minister, for those comments, and thank you for your commitment to entertaining changes, as you've indicated, that have been proposed by a number of members of the committee. I'm sure that as we move forward, as we are today, we have some questions for you.

We now move to Inky, and let's stick to those five-minute rounds, so we can get an awful lot of questions in. I think that might be helpful. And if you have additional questions, we'll even get into those too.

Mr. Inky Mark (Dauphin—Swan River, CA): Thank you, Mr. Chairman. And I want to thank the minister and the staff for being here today. I'd like to thank all the members of the committee as well, including the chairman, who conducted himself in a very cooperative way. It was an excellent week on the road, and we heard from many people.

I'd like to begin by saying that these are really historic times, and as we know, we need a new bill after 25 years. I believe we're setting the stage for the future, because we hear all the time that immigration is important to this country and has been important in our past. But I think it's important for me to reiterate that if you examine our history, it's only been in the last 25 or 30 years that we really have opened the doors to immigration from non-western societies. I say that because I'm part of that immigration process, that open-door process going back to, for me, the 1950s, but certainly I would say the door really didn't open until the early- to mid-1970s.

Therefore, I would say to you that you have not only the responsibility, but the authority to set the stage for the future, so that Canada really is perceived as a country with an open policy. After all the history we've had, certainly going back a couple of hundred years, we don't want to repeat the mistakes of the past.

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I agree with your comments this morning. There are a lot of positive changes, but I have always said that a lot of the problems that exist today can be dealt with not through legislation, but just through effective screening. You can do that without legislation, because the legislation is already there, whether it's in your act or someone else's act.

I was actually surprised that the witnesses who appeared before us would characterize this bill as being un-Canadian, unfair, and non-transparent. These are the people, as the chairman alluded to this morning, who work in this business, not just the lawyers, but the advocate groups. Therefore I believe that this bill, if anything, should be fair and transparent and Canadian, because Canadians are known to be just, compassionate people.

I just want to bring up a few points they brought up. The most common one was this business of referring to permanent residents as foreign nationals. Mr. Mahoney indicated that perhaps we need to redefine the definition. If you're landed, then you have status, whether in or out of this country. I think it's a rational argument for that approach. Determine that person has been landed, and if they are, then in or out, they still have status. But this business of trying to make them prove they have status when they miss the cut-off when out of the country, that to me is not reasonable. I think it's even un-Canadian, trying to get back into this country.

The other thing that is continually brought up by many people is this business of leave for the Federal Court's right to due process. They keep saying that the numbers are very small that go to the Federal Court. So if we respect the rule of law, and we are a country that operates by the rule of law, then I can't understand why our bills don't respect that due process of law. Not everyone has that right to due process of law. What are we afraid of? If our legal system is a good one, which it is, then we should have the confidence that it works. I think history has proven it does work.

So it takes a few more months, but certainly we can expedite the process.

The Chair: I wonder if I could, because you've addressed two questions. I'll let her answer and I'll get back to you.

And I want to thank you, Inky, for your vision for this country too. I must tell you that during the course of the week I was very impressed by both yourself and Lynne and all of the members, in terms of what kind of country we want to create through immigration. I hope at the end of the day your party will follow your example and support this bill or even a better version of it. So thank you, Inky.

Minister, Inky has touched on two questions, and he's absolutely right in terms of what we heard. One is this term “foreign national”, and the second is with regard to the leave provision and the small numbers who in fact are impacted. Perhaps for the benefit of the committee you can address those two issues now.

With regard to this term “foreign national”, what's the intent in terms of labelling everybody who's not a citizen a foreign national? This seems to me, and I think it was unanimous across the country, a very repugnant term to refer to anybody who's not a citizen as a foreign national.

Ms. Elinor Caplan: I'm pleased to address this issue.

I'll tell you, when I travel internationally, the term “foreign national” is a commonly used term in immigration to describe someone who is not a citizen of the country in which they reside. It's not a negative or a pejorative term in any way. In fact when we considered how to describe a person who was not a Canadian citizen, we had a number of choices: we could use the American terminology of “alien” or the terminology of “non-citizen” or “not a Canadian citizen” or the commonly used term of “foreign national”.

To me, the term “non-Canadian” or “non-Canadian citizen” was far more negative and less inclusionary than an accurate term when you're talking about someone whose travel document is the passport of a foreign country and they are a citizen, a national of that foreign country.

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So the term “foreign national” is an accurate descriptor of someone who carries the passport and is a citizen of a foreign country and who is in Canada, whether they have permanent resident status or some other status.

I want to make this offer to the committee. If after your discussions you prefer the term “non-citizen” or “non-Canadian citizen” to the term “foreign national”, with the understanding that the legislation would have to read on occasion “non-citizen” and “non-permanent resident”, I'm willing to consider an amendment, although personally I find that more negative than the very accepted international terminology of “foreign national”. So I'll leave that—

The Chair: We're up to the challenge.

Ms. Elinor Caplan: I'll leave that with the committee. I know that language is important. I want to be clear that no offence was meant by the terminology, and that it is a commonly used term in immigration circles internationally.

On the second issue, access to the Federal Court, I believe in the principle that people outside Canada who make immigration applications, who are not Canadians and who have no status or attachment to Canada, should not have greater access to the Federal Court of Canada than people in Canada—Canadians, permanent residents.

This is particularly important, because we're going to have in-Canada landing classes, and for those people there's a leave requirement before you have access to the Federal Court. I think the same rules should apply whether you're making an application in Canada or outside Canada. The only thing the leave does—and it doesn't interfere with due process—is to serve as a screening mechanism that screens out the frivolous cases.

There are some interesting statistics. I don't want to bore you with statistics, but 60% of the cases from abroad that are sent to the Federal Court now are either withdrawn or denied. We have seen a huge increase in the numbers of applications for judicial review at the Federal Court from overseas applications.

It seems to me that's not fair, although I am very pleased to hear my Alliance critic supporting due process. I'm hoping that your party has changed its view, and that you no longer want to scrap the Charter of Rights and Freedoms to be able to deny access to those who want to make a protection claim. I think that's a progressive improvement in your policy, and I welcome that.

One other point was raised by Mr. Mark, and that did relate to the permanent resident card. That is a travel document for permanent residents, just as a passport is available to Canadian citizens. The permanent resident card, with a similar expiry date as the passport—five years in both cases—will help ease the entry to Canada of those who have permanent resident status and have a valid permanent resident card.

The proposal to facilitate the entry to Canada of anyone who has been away from Canada less than a year and has an expired card is actually... I refer to it as the Michael Greene amendment, because this bill is far more generous than under the present legislation. There's no guarantee of facilitation to Canada. You have to prove that you haven't abandoned your permanent resident status if you're away for more than 183 days. So I think this legislation is an improvement.

The fact that we will facilitate entry to Canada of anyone who has been away for less than a year, even if their permanent resident card is expired, is a positive improvement and is extremely fair and generous, given the fact that permanent residents are not yet Canadian citizens.

Canadian citizens are the only ones who have an absolute right of domicile in Canada. Canadian citizens cannot be deported. Canadian citizens have the right to vote and the right to hold public office. Those are the three rights of Canadian citizenship. I think we devalue Canadian citizenship if we extend those rights to people who are not Canadian citizens.

Mr. Inky Mark: Thank you.

I have a couple of points on the business of the residency card. Would you support the extension from five years to ten years? The other question is whether you would make SIRC decisions binding.

Ms. Elinor Caplan: On the question of the time on a permanent resident card, I think it's important that it be consistent with the time period on a passport, since it is a travel document for permanent residents, just as a passport is a travel document for citizens.

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Given the fact that 80% of all permanent residents obtain citizenship at their earliest opportunity, I think you're talking about a relatively small number of people. We want to encourage them to become citizens.

Mr. Inky Mark: The SIRC decision, would you make that binding? It was brought up in our discussions.

Ms. Elinor Caplan: Which decision?

Mr. Inky Mark: The SIRC—the Security Intelligence Review Committee.

Ms. Elinor Caplan: In fact SIRC has no authority in this legislation. They oversee CSIS, and that is in the CSIS Act.

The Chair: We'll follow that later.

Steve Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Thanks, Mr. Chairman.

I can't help but notice that I'm away for a week due to a family loss, and the committee is just getting along amazingly well. So maybe I should stay away more often.

A voice: No, no.

The Chair: Thank you very much, Steve.

Mr. Steve Mahoney: Moving on now, I have a number of questions. Maybe what I could do is just put them, and then you could answer them.

The first question refers to your comment on page nine, Minister, about the ADR proposal. Could you expand on whether or not that offer that you've made is supported, and what kind of a model you might use?

Secondly, I note with some interest that there's concern, on page eight of your report, that requiring leave... “Some have claimed this will insulate immigration officers from effective supervision.” Yet in other sections of the bill there's concern that those same immigration officers have too much authority. That's probably more a comment, but you might want to respond to it.

The other thing, on page six, is you refer to how the fundamental principles should be found in the act itself. If you could perhaps expand on that, I would appreciate it.

I'd also like some clarification on the dated assessment of labour market needs that you refer to. I go to the proposed points grid. It refers to, under education, three-year equivalent full-time studies training leading to a diploma, trade certificate, or apprenticeship. I think that's really important, but I'd like some clarification.

If a trade certificate is equal to an apprenticeship, which leads to a trade certificate, in terms of the number of points... Also, why would there be no points given for a spouse who perhaps... You do give points for a spouse with a master's or a PhD, etc., but there's no reference to trade certificates or apprenticeships for spouses. It would seem to me that's something we might want to add to the proposed point grid.

And finally, on the frustrating issue of foreign national, I've wrestled with this as well, and the term “landed immigrant” seems to have disappeared from the vernacular of the Immigration Act or the immigration psyche, and it's being replaced by the term “permanent resident”. That might be acceptable.

I think it's the permanent residents who are the landed immigrants, one and the same, who have an objection to being lumped into a category called “foreign national”. Even though they're not citizens, they're more than just people trying to get to this country. They've got status. They're landed immigrants. It's a terminology that I think a lot of people—our parents and grandparents—have felt enormously proud to be called.

I would just say that I don't particularly have a problem with refugees, visa holders, students, minister's permits—people like that—being classed as foreign nationals. They're here under specific terms. It's the issue of the landed immigrant that I would like you to define. I don't like non-Canadian, non-citizen, non-national, and I sure as heck don't like alien. I really like landed immigrant as a terminology.

So those are my questions and comments.

Ms. Elinor Caplan: In reverse order, if I can, Mr. Chair, on the issue of landed immigrant, that continues to be the vernacular. Permanent resident and landed immigrant are synonymous. The IMM-1000 is the landing document. It will be replaced by the permanent resident card. People will continue to call themselves landed immigrants, and have permanent resident status clearly defined in this bill, as well as the rights of permanent residents clearly defined in the bill. I think that's an important addition to Bill C-11, because permanent resident status is clearly defined.

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However, permanent residents are not yet citizens of Canada. We hope they will be, and under the Citizenship Act we encourage the granting of citizenship. Some 80% of permanent residents take out citizenship at the very first opportunity, after three years in Canada. It is important in this bill to be able to distinguish between Canadian citizens, permanent residents, and others. However, it's also important to be able to distinguish between a Canadian citizen and a non-Canadian citizen.

My personal view has been that “foreign national” is an accurate descriptor of someone who has the passport of and who is a citizen of another country, even if they have permanent resident status in Canada. It was a more inclusive term than non-citizen, non-Canadian citizen, or non-Canadian national. I have said to Mr. Mark—and I repeat—that while that's my view, I'm open to the view of the committee. “Foreign national” is a commonly used term internationally.

The last point I'll make is for Mr. Mahoney. The department and the legislation have used the terminology of “permanent resident” to replace “landed immigrant” since 1978. The two terms are used and will continue to be used, but it's been over 20 years since we began using the term “permanent resident”.

The Chair: It's okay, Steve's been in a time warp for the past 20 years—

Mr. Steve Mahoney: I just never heard it—

Ms. Elinor Caplan: I'd like to comment on the issue you raised, a very important issue concerning the change of the classification system with the link to skill requirements for the labour force. That's going to be included in the new regulations. As you know, we've tabled a proposal and I'm hopeful this committee will participate in the work in progress.

Technically and legally, we can't begin the formal development of regulations under the bill until you pass the bill in the House of Commons. That's the way it works. Until the bill is finally passed, we cannot formally begin regulation development. I pushed the envelope because I believe the committee has an important job to do in understanding the thinking in the development of regs, and a classification system is an important example of something that is in the regulations.

I'll look to the advice from committee on how we can have the very best point system, one that is open, clear, and transparent. We need one that will help us to identify those people we need to bring in under the economic immigrant category, where the point system applies.

I would point out, however, that our immigration program is balanced. While 60% come under the economic immigration category, where the point system applies, 40% come as family class and refugee class under the immigration program. If you include or consider the numbers of families who accompany the independent immigrants, I think you'd come to the conclusion, as I have, that our immigration program is balanced as compared to those where the point system applies and to those where the point system does not apply. Those are important issues for the regs.

You raised the issue of fundamental principles. In my opening remarks I said that it is very important that all the fundamental principles be in the act, all the individual rights, and all the objectives. Those should not be subject to change by regulation. That's why I'd like to see that clarified in the legislation, to ensure that in the future the fundamental rights and principles of this bill cannot be touched by changes in regulation because the intent is clear.

On the issue of leave, as I explained, there's a leave provision in Canada. We want to have a level playing field, if you will, so people outside Canada don't have greater access to the Federal Court.

As for the authority of immigration officers, Bill C-11 pretty much maintains the status quo. There's no enhanced authority in this legislation with respect to what immigration officers have today. As for as oversight and scrutiny, every decision of an immigration officer is subject to judicial review with leave. That is in place, and that's why I believe, since all a judicial review can do is send a case back for redetermination, the way to solve problems where errors do occur is through an effective alternate dispute resolution mechanism.

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On that one, what we've put in place is a pilot project where program managers agree to review cases according to specified criteria. I have to tell you that I've been disappointed that the practitioners, the Canadian Bar Association lawyers and others, have been slow to participate in the pilot project. I've said that what we want to achieve is to solve, through ADR, the kinds of issues that would be referred back as a result of judicial review. We're looking at how we can make sure that is a workable ADR mechanism, and I'm hopeful that we'll be able to put something in place that will solve the kinds of issues that should be resolved without having to go to the Federal Court.

Let me say that even with ADR there will still be the opportunity for judicial review with leave at the Federal Court. The one bottom line I did have in my discussions with the bar was that the decision made through ADR should not give us a second judicial review with leave. As long as we have one ultimate judicial review with leave, I think that we can work and find an ADR mechanism that will be effective.

The Chair: Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Mr. Chairman.

Good morning, Minister. I got confused and thought we were starting at 9 instead of 8:30. I'm sorry to be late.

I gave a quick look to your notes and I'm happy to see that you are quite willing to consider a number of suggestions that were made during the week we spent working very hard. We worked in an atmosphere which was quite exceptional and, to my entire satisfaction, very much non partisan.

Some witnesses were critical of the number, but they were few. Some wanted it reduced, but they were indeed very few. All the others agreed that Canada has a history of immigration and welcoming to newcomers.

A number of concerns have been expressed time and again, and I'd like to point them out to you to see whether you too agree they should be taken into consideration, in particular, that we should mention in the Bill those international treaties and conventions signed by Canada, to very clearly identify values upheld by Canada and Quebec. For instance, there are many references to torture, and people were pleased to see that, but there is also the whole matter of violence against women, for example, and those kinds of things.

There must be a way to draft something which would be very inclusive. Twenty-five years from now, we'll have certainly signed other conventions and, at that time, we'll need to amend the act. So I'd like to know whether you would be inclined to include something like that.

Many other things were also mentioned, but as I only have five minutes, I'm just going to raise the matter which is at the top of my list. It's not necessarily the most important, but still, it's very important, I think. It has to do with the commissioners' appointment process.

We heard an interesting presentation which, I am proud to say, was made by Quebeckers, on how we could manage to have an appointment process that would be above all suspicion. Minister, I'd like to know whether you would be willing, at least, to look at the proposal made by witnesses from McGill University and Montreal University. There is a report by François Crépeau, Cécile Rousseau and, I think, Sylvie Nadon, among others. I believe it would be important that commissioners be really as highly considered by the public as judges. According to what we heard, it's not the case today. People had concerns about that. It might be timely, in 2001, to set up a system which is intelligent, logical and credible.

Those are my first two questions. I'll continue later on.

The Chair: Thank you, Madeleine.

[English]

I have two questions. One has to do with those fundamental principles—and we heard this, as Madeleine indicated—and asks whether or not we ought to enshrine in the legislation some reference to those conventions we've signed on to, be it the Convention against Torture, the International Convention on the Rights of the Child... The second one deals with IRB appointees.

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[Translation]

Ms. Elinor Caplan: Thank you very much for your question.

[English]

I regret that you weren't here to hear my opening remarks. I'm willing to repeat them, but since I did distribute a copy to the committee, I won't subject you to yet another reading.

That's a joke.

On the question of conventions and treaties, the Convention against Torture is recognized in the legislation, as is the best interest of the child in the principles of the act. The Geneva Convention is also recognized. It just is not possible to list all the conventions and treaties in the legislation without having a thick, long list of all the conventions we have signed. You're correct that there will be other conventions in the future.

I think that you're referring to something I want to make a statement on to the committee, and that is, I don't know of any country in the world that has enshrined article 3 from the Convention against Torture in legislation. I would just leave that to you to think about.

We in the government—and I've repeated this on many occasions—take our international obligations very seriously as a matter of principle and will continue to do so.

The second point you make is on the objectives of the act. On that I have stated that I believe the objectives should include multiculturalism. As you know, the Canada-Quebec accord is respected and enshrined in the legislation. We have also heard representations regarding our commitment to official languages, and I believe that some amendments will be made to further strengthen and support that commitment as well.

On the third point you made, regarding the appointment process to the Immigration and Refugee Board, I want you to know that I believe it is intelligent, credible, and logical. In 1995 an independent advisory committee was established. Any individual in this country is free to make an application, and they have to meet certain qualification requirements before their application is accepted. If the application is accepted by this independent advisory committee, they then have to take a written test, have a personal interview, and have their references checked.

Seventy percent of all those who apply to the advisory committee are not accepted as qualified candidates. Only those who have been accepted as qualified candidates are recommended to the minister. From that list of qualified candidates, individuals are selected through the Order in Council process, which by the way is the way judges are appointed, through Order in Council. It's a quasi-judicial appointment, and some people believe that all members should be lawyers, but I disagree. I think ordinary Canadians who have the qualifications and the competence to make these decisions should be included as members of the Immigration and Refugee Board.

That board is now ten years old. It's gone through some growth, not only because of the volume but also because of the demands made on it. It has an outstanding international reputation, and we should be proud of it. It's not perfect, but I think we can make it better with this bill by having a Refugee Appeal Division so we can have faster and fairer decision-making, because where an error is made in the first instance, there will be an opportunity to correct it.

I think the process for appointment to the IRB meets your test of being credible, logical, and intelligent, and many Canadians serve proudly as members of the IRB.

The Chair: Thank you, Minister.

John McCallum.

Mr. John McCallum (Markham, Lib.): Thank you.

[Translation]

First, I, too, would like to point out the excellent spirit around this table, during our travels and here. It seemed to me that almost everyone around this table agreed on the basic points, the immigration philosophy.

• 0930

[English]

Perhaps not the greening, but the liberalizing of the Canadian Alliance with respect to immigration we've seen under Inky was wonderful, and I just hope it carries through as the legislation goes through the House.

I would like to make one general point and then ask three brief questions. I believe, as I think we all do, that one has to have a balance or an equilibrium between our desire to welcome people, as has been our tradition, and the public desire to get people out faster and keep bad people out in the first place. I think we need this balance, but what I felt as we went through our hearings is that, if anything, we tilted too much to the getting rid of the criminal side and too little to the welcoming side. I think the amendments you've agreed to go quite a considerable way in redressing that imbalance. But I have three other questions to ask you.

First, we heard what could only be described as heart-rending testimony from people representing refugees, typically women, who, it was alleged, would go back to death or other horrible things were they not given a second chance. Often the reason the first chance didn't work was that they had bad lawyers or because they had been subject to sexual abuse and they were sitting in a room with their husband and for cultural reasons didn't want to mention it—this sort of thing. I'm sure you're sympathetic to such cases, and my question is, what assurances can you give us that such people will be treated fairly and not be sent back to a terrible outcome?

Second, I'm not sure exactly what the language would be, but without changing the substance of the bill, would it possible to go in the direction more of welcoming and less of criminality, to expand the objectives, clause 3, to include words about our commitment to immigration, our commitment to justice and humanitarian treatment around the world, and this kind of thing, or perhaps in a preamble to give a more positive flavour?

Finally, with respect to this vexing issue of “foreign national”, one of the lawyers suggested what I thought was a simple solution: you define foreign national as a person who is neither a citizen nor a landed immigrant. That might not be perfectly accurate, but a bill can make a definition that it wants to make. Once you make that definition you have three categories of person: you have a foreign national, you have a landed immigrant, and you have a citizen. Then it would be simple, because wherever you see the term “foreign national” in the bill today, you just change it to foreign national and permanent resident, or landed immigrant.

The Chair: On whether or not you can have a second kick at the can, so to speak, once being refused a refugee application, perhaps you can tell us what's in the bill that would make that possible. Because John was right, we heard some pretty heart-wrenching stories of that.

Ms. Elinor Caplan: Let me start with the suggestion on foreign national. I think the idea is interesting. However, a permanent resident would also have to be described as a non-citizen, because you have to distinguish in the bill between citizens and those who are not yet citizens. So if you were to have your three categories, they would be citizen, permanent resident non-citizen, and foreign national. As I said before, I'm open to the view of the committee, but it is important that we distinguish in the bill between the rights of citizens and non-citizens in some way as you look at three categories or however many. That has to be part of the bill, because permanent residents do not have all the rights of citizens in this legislation, for obvious reasons.

On the question of second chance, the answer is yes, of course. The decision that there would be one opportunity to go to the Immigration and Refugee Board for determination I think is a very good policy. However, for change of circumstance or the kind of situation you have described so eloquently, the PRRA is the opportunity for a second chance, as is H and C consideration. And appeal to the minister is always a possibility in the kinds of cases where an individual, for whatever reason, particularly if there should be abusive situations, can make a direct request to have reconsideration on the basis of changed circumstance before removal.

• 0935

Let me make it clear: we take very seriously the non-refoulement obligations of our international treaty, that before anyone is removed we consider the risk of removal.

The Chair: Minister, the policy intent is in the bill that essentially once you've had one refugee hearing you can't have another one.

Ms. Elinor Caplan: At the IRB.

The Chair: At the IRB. What you're saying is that with changed circumstances or a number of other things, it's the PRRA or the H and C—a secondary sort of thing.

Ms. Elinor Caplan: That's right.

The Chair: Whether or not that needs to be clarified or is understood or not understood, I think that's what John's question was.

Ms. Elinor Caplan: Again, it's important that the IRB has a built-in appeal at the RAD, so where a case has been negative, an individual can appeal to the RAD if they feel they had a bad lawyer. So there is a second chance, if you will, for a review of the case at the IRB. But once there's a final determination through the IRB procedure, there's still an opportunity to go to the PRRA, as well as an appeal to the minister.

The Chair: But those are paper appeals, and part of the submissions we heard widely across the country was that oral hearings tend to have a greater impact than paper appeals, be they to the RAD or to the PRRA or to wherever. So perhaps you might cover that point.

Ms. Elinor Caplan: Let me point out for committee—and it's a good point—that in the legislation there is discretion to permit an oral hearing at the PRRA in exceptional circumstances. So while it is not going to be automatic, there is the opportunity to request at the PRRA a hearing in exceptional circumstances.

The Chair: Okay, thank you.

Judy, would you mind having John go ahead of you? He's got an important matter in the House that he'd love to get to, so in the spirit of cooperation that we've managed to develop—

Ms. Elinor Caplan: Also I want to clarify that the RAD, the Refugee Appeal Division, is not a second hearing. It is a review on merit of the hearing that took place at the Refugee Protection Division.

The Chair: We'll discuss that after with Peter, but thank you.

John, five minutes.

Mr. John Herron (Fundy—Royal, PC): First, I'd like to extend to my colleague in the NDP thanks for her help. I know she wants to protect safe drinking water in Canada as well, and I want to make sure I'm there to prepare for that particular debate.

The Chair: Listen, John, I've just been absolutely impressed with your energy.

Mr. John Herron: First, I want to touch on the fact that there has been a fair amount of goodwill among the committee about trying to improve this piece of legislation. I also appreciate the tenor of the minister and her willingness to be accessible to the committee with respect to reviewing this particular piece of legislation.

Having said that, though, according to the majority of the witnesses this committee has heard over the past number of weeks, the problem with the law is not necessarily that it is too lax or not tough enough, but rather that stripping permanent residents of their basic rights and increasing discretionary powers of officers will not make the system fairer or faster. These measures, which some have described as draconian, will not stop problems such as the cases we had with Gaetano Amodeo or Ahmed Ressam. The fact is that enforcement under the status quo can work quickly. It's just that the department doesn't do it.

Based on the fact that judicial review consists of the review of the methods of the case, not the merits, how would denying an appeal for long-term permanent residents who have been categorized under a broad criterion of serious criminality—organized crime, security, or violating human rights or international rights—be adhering to key Canadian principles of fundamental justice? How would this help us enforce cases such as Amodeo or Ahmed Ressam?

• 0940

We had testimony before this committee that in the Gaetano Amodeo situation this law would not, as you said in one of the last pages of your brief, help criminals get out faster. The problem is that it's in the application of the law and the enforcement of the law where the largest gap lies.

The officials haven't said that stripping some of these fundamental rights under a guise that it will help speed up the process is the issue.

One example in particular that I'd like to flag, and Ms. Atkinson flagged before, is if a spouse is on an investor and entrepreneurial application, the spouse would have to go through security checks as well. Would it be the RCMP, Interpol, or the like? Likely this was not done in the Amodeo case.

I'm flagging the clear issue that it's more application and enforcement issues we have to follow, rather than the depriving of rights.

Thank you, Mr. Chair.

The Chair: Thank you.

Minister.

Mr. Elinor Caplan: I think there has been a serious misunderstanding. In fact in your questioning you are mixing apples and oranges. The cases you mention are not permanent residents. In fact the legislation would address through front-end security screening, particularly in one case, which was a denied refugee claim, an opportunity to identify individuals who are inadmissible to Canada for criminality and security reasons upfront and faster. That's not a criminal case.

Mr. John Herron: Mr. Chair, on the Amodeo case—

The Chair: Excuse me. Let her finish, and then if you need a supplemental, I'll do it.

Mr. Elinor Caplan: That's right. You asked your question; I'll give the answer.

In the case of an application for refugee status, the upfront security screening will go a long way toward helping us identify those people who are inadmissible to Canada sooner. That's point number one.

In the case where a spouse makes an application for permanent resident status, separated spouses are not considered to be part of an application in the present legislation, and that remains the same.

Having said that, there is no stripping of rights of permanent residents in this legislation. In fact what the legislation does very clearly is clarify what those rights are, as well as streamline the process. Let me give you an example of what will actually happen.

At the present time, it takes years to remove serious criminals and those who pose a risk to Canadian society. I believe that is intolerable. In this legislation we've said very clearly there's a ten-and-two rule if you commit a crime that is punishable by up to ten years and you have received a sentence of two years in a federal penitentiary. You speak to any of the prosecutors and they will tell you that you have to do something pretty serious in this country or be a repeat offender before you get a two-year sentence to serve in a federal penitentiary.

The way it will work and with the statement I made today, once someone has committed that crime, if they are a permanent resident and they can be deported from this country for having become criminally inadmissible to Canada, the department will consider whether or not to write a report. At the time they consider it, they will have to take into consideration the type of crime and all of the features people have made representations on, such as whether the crime was violent and how long they've been in Canada. All of that will be considered at the time when they consider writing a report.

• 0945

When the report is written, it is a senior immigration officer who will make the decision about whether or not that report is referred to an admissibility hearing by an officer at the Immigration Appeal Division. It will be the officer of that division who will then issue a removal order as the adjudicator. An adjudicator at the IRB will issue the removal order. The decision to issue the removal order is subject to judicial review. If the judicial review upholds the removal order, there is still the opportunity to appeal to the minister. That's the process that's envisioned in this bill.

The Chair: John, we're talking about what Bill C-11 did, with proposed amendments we're suggesting that will in fact protect those rights.

Ms. Elinor Caplan: I think anyone who would suggest that is not due process and not fair is misrepresenting and misunderstanding the process.

The Chair: John.

Mr. John Herron: I wouldn't use this on the enforcement issue, but where I was concerned, for instance, utilizing the Amodeo case, was that when Maria Sicurella Amodeo made her application under her maiden name in Paris, under the entrepreneur investor class, because we have CSIS people in the Paris office—which is public knowledge—that spouse should have gone through the enforcement and security check before her application was accepted, given that this is the role of CSIS and the personnel in the screening that we have in the law currently. That's an example where, if that check had been done, her application likely would not have been approved. So that's the illustration.

Ms. Elinor Caplan: I want to make this point, because you're wrong: separated spouses are not included on applications. When you have a legal separation, the legality of that separation means that you are not included on the application, and therefore no check is done of a spouse who is not included on an application and who is not eligible for application.

The Chair: Thank you, Minister. We're talking about a bill here. Getting into specific applications is troubling.

Ms. Elinor Caplan: I understand, but it has to be clarified. First of all, you're not talking about a permanent resident. Secondly, you're talking about a case where there was no name on an application because there was no legal status. It was a legal separation.

The Chair: My point is that if John wants to ask specific questions on specific applications, he can do that directly. We're talking about Bill C-11—

Ms. Elinor Caplan: That's correct.

The Chair: —a far more important issue, which is, what law are we going to have to determine a whole bunch of different individual applications?

Thank you.

Judy.

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): Thank you, Mr. Chairperson.

I also want to acknowledge the comments by the Minister, and especially the fact that she's prepared to make some changes. As a committee, having heard from hundreds of groups, most of whom were extremely critical of the bill, I think we're going to have to vet those changes very carefully and come back to you, Madam Minister, with further requests for changes.

Based on your opening remarks, I'm not sure if in fact you've addressed all the major concerns raised by the key organizations that work day in and day out on immigration and refugee matters.

I don't want to spoil the spirit of cooperation that exists around this table, but I left those hearings reminded that we have a lot of work to do on this bill. I'm not trying to be overly critical about the work you've done, but I think we have some major areas to address.

First of all, with respect to your recommendation on regulatory authority, group after group told us that we were doing a great disservice to the democratic process by handing over so much authority and power to officials and to unelected, unaccountable bodies.

• 0950

We heard time and time again that we should be pushing for changes to this bill to have more of the substantive issues placed in the bill, not left to regulations, and if that failed, we should be trying to find a way to get all regulations brought to the legislative process for approval. You've indicated that you're prepared to ensure that all matters affecting fundamental principles, rights, and freedoms are placed only in the act itself.

What about policy? Many of the elements left to regulations have to do with policies and broad issues pertaining to the vision, the direction, the future of our immigration system.

One little example would be the regulation under clause 14 that allows for officials to determine the number of applications that may be processed or approved in a year, the number of visas and other documents that may be issued in a year, and the measures to be taken when that number is exceeded. The concern we heard from group after group is that this in fact is a way for officials within the department to set quotas and for Parliament to miss an opportunity to ensure that we're reflecting our history and tradition, having an open door policy and being able to be competitive on the international immigration scene.

That's one concern, regulations and the whole power. I think we're concerned about giving up our responsibilities as members of Parliament. How much are we delegating to authorities outside of Parliament through this bill? I don't think we've fully addressed that.

The second concern has to do with Madeleine's point that this is an overhaul of a bill, 25 years after the last major bill. We can't miss the opportunity to make sure we're consistent with our international obligations, and I think the question here that you didn't answer is, what would be so wrong with actually putting in the statement on principles the fact that Canada is determined to be in compliance with the international conventions to which we are signatories? What would be wrong with actually spelling out compliance with the UN conventions on refugees, on torture, and on the rights of the child?

I think that was a reasonable suggestion that groups made, which it could easily fit under clause 3 as a statement of principle and in fact would give us a more detailed framework from which to act in the future.

Thirdly, the whole question of being competitive internationally and our ability to attract immigrants does not seem to be dealt with thoroughly in this act. The concern that group after group raised, outside of a few minor changes in terms of family sponsorships, was that we're really not opening up our system to allow families to be reunited in this country. They did say, over and over again, that this bill does seem to err on the side of enforcement and on protecting Canada from the world, as opposed to opening up our system so that we can reunite families and be competitive internationally. As they said, it's not just a matter of changing the occupational grid system, it's a matter of bringing families together so that in fact they can then contribute to society.

I know my time is up. I have a lot more, and maybe I'll have another opportunity, but those are three areas of big concern that I think we haven't addressed yet.

Ms. Elinor Caplan: Let me start with the regulatory authority. It is no greater in this act than what exists under the current Immigration Act. In fact, there are some areas where we have moved a number of things from the regulations into the act, for example, the recognition of family class, the recognition of the economic class, and status documents for permanent residents, as well as many authorities that might affect fundamental rights, such as the authority to request fingerprints and photographs, which was formerly only in the regulations. Those are all in the act.

Second of all, enforcement procedures are necessarily linked to fundamental rights. We need to make sure these fundamental rights are respected when carrying out enforcement procedures. That's why the bill deals extensively with program integrity.

• 0955

The regulations are important because they define specifically the programs, the procedures, and the administrative mechanisms, if you will. That's why I want the committee to be involved in the development of those regulations. But I'll repeat that the regulatory-making authority in this legislation is no greater than what exists in the current act. With a suggestion from the committee of a change in wording, a clarification in the bill, I think we can ensure that all rights, all policy, and all objectives, all of those things that are really important to Canadians, are in the act and cannot be changed through regulation. I want to make that point.

The Chair: Minister, with regard to regulations, I believe it's fair to say that the committee is determined to be involved in the development of those regulations, and I think you've indicated that we can be a part of that. I think that's an important area for us to be involved in so that we can test that statement about existing regulations versus new regulations. If any new regulations in fact get introduced or suggested by a minister or a department, they must and could come back to the committee for public hearings. I know that's not statutory authority, but I think it would go a long way toward making sure that a lot of people know that there would be committee scrutiny of those regulations. I think that would be very helpful and constructive.

Ms. Elinor Caplan: In fact I welcome the committee participation and interest.

As you know, all proposed regulations are put in the Canada Gazette. I think it's important that the committee be notified whenever there is a proposed regulatory change so that if it is something you're interested in and you feel is significant, you will have an opportunity through the regulation-making process to ensure that views are heard and that your input is considered, and I support that.

On the issue of managing the levels, the minister is obligated to table in Parliament the immigration plan. What exists in this legislation is status quo regarding that requirement. For example, under the Canada-Quebec accord, Quebec has the same authority that exists in the legislation today, which is to manage the levels, and they have exercised their authority under the accord to set a numerical target and limit on applications for the investor program, for example.

The federal legislation has to be consistent with the authorities. If we don't have that, it might jeopardize the ability to have that in an accord with our province or with any other province through a provincial nominee agreement. Those are the sorts of things where the authority in the legislation has to be consistent. But I would point out that authority exists in the present Immigration Act, and there's nothing new.

The Chair: Minister, with regard to opening that front door wider—Judy is absolutely right that we heard it again very strongly—and ensuring that we get more immigrants and more families, there are some positive aspects. But in terms of extending the family class to grandparents, I understood, or even to brothers and sisters, there is a way through the point system. What you're saying is that you'd like us to open up those things a lot more—

Ms. Elinor Caplan: The family class is recognized in the bill. The definition of family class will be in regulation. We've announced the policy intent, for example, to raise the age of dependent children to up to 22. Presently it's 19. These discussions with our provincial partners have been ongoing. The federal government through the immigration department does not act unilaterally in making a decision on the expansion of the definition of family class. We included in the bill the term “parents” even though it's presently in the regulations, because we wanted to be sure that people knew that was something that would be included in the regulations. Of course, at present grandparents can be sponsored. Once the parents are here, the grandparents can be sponsored through the family class.

• 1000

It's important that we have this discussion at this committee and a full understanding of what are the implications of any expansion, particularly as we discuss moving toward 1%, which is the goal of the government over the long run.

As I mentioned, while the immigration program today is balanced between those where the point system applies, the economic immigrants, and the family class and refugees, it's important for this committee and for government, not just by ourselves but with our provincial partners, to consider how we can solve those issues of dispersion to make sure that all parts of Canada see the benefits of immigration, how we can address the issue of retention, and how we can work with our provincial partners to make sure they have the immigration they need to ensure their provinces prosper. This is why I'm so supportive of provincial nominee agreements and working with provinces when it comes to changing any definition of family class. They have a role, and we have an obligation to consult with them.

The Chair: Minister, I understand that you have to go to a cabinet meeting. I hope we can keep Joan around. I know that we also have the IRB coming before us.

Ms. Elinor Caplan: Before I leave, there's one thing I wanted to point out, and that relates to the convention. I would draw the committee's attention to page 3 of the bill, under “Objectives”. Paragraph 3(2)(b) says:

to fulfil Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement

That's the commitment under the objectives, to ensure that our international obligations are met.

The Chair: Thank you, Minister. We look forward to continuing the discussions with Joan and the IRB. We'll get back to you if we need you again between now and clause-by-clause consideration.

Ms. Elinor Caplan: Before I leave, I once again want to thank the committee for their thoughtfulness and their views and for being so patient and listening to all of the representations that came before the committee. I look forward to working with you to ensure we have the very best bill in the public interest that all Canadians can be proud of.

The Chair: Thank you, Minister.

We'll take a five-minute break, and then we'll get back to the IRB and the department.

• 1003

• 1011

The Chair: Colleagues, I wonder if we could have the committee members back to the table, as well as invite the IRB—Peter Showler and Phil Palmer.

Mr. Peter Showler (Chairperson, Immigration and Refugee Board): Good morning.

The Chair: Good morning, Peter. Thank you very much for being with us this morning. I don't know whether you have any introductory comments or remarks to begin with...

Mr. Peter Showler: Mr. Fontana, if you will recall, the first time I appeared before this committee last year you offered me opening remarks of five to seven minutes. I took fifteen minutes. I owe you eight minutes, and I'm repaying you now. I have no opening remarks.

I'm perfectly aware that the committee has gone across the country and you have spoken to witnesses across the country. You have questions for me, and I'm fully available and at your disposal.

The Chair: Thank you very much, Peter and Philip. We'll move quickly then to questions.

Inky.

Mr. Inky Mark: Thank you, Mr. Chair.

Welcome to the committee. First, let me thank you for all the good work you do, Peter.

On that note, I know that through policy and through your work you make sure that the selection process is based on merit. I know that people are trained. If we deem it so important that the people who sit on your boards are qualified, selected on merit—which most of us agree with—in fact all of us agree with—then why don't we put that in legislation? Why don't we put in place a selection committee procedure, the makeup of the committee, the function of the committee, so that it is transparent? Then, down the road, whoever becomes the minister, whoever becomes the chair of the board, has some kind of guidance and road map to follow.

Mr. Peter Showler: Is the question to me why don't we do it?

Mr. Inky Mark: Why don't we do it, right.

Mr. Peter Showler: As you understand, that's a decision of the government. That's their decision.

I can tell you that presently, the way the system works, there's a lot of flexibility in the system. But if it were in legislation... It's not as though it can't go into legislation. I can't give you any logistical reason why it shouldn't, but that's simply a decision of the government, whether or not it's going to be in legislation.

The Chair: Peter, for the benefit of the committee and perhaps even for Canadian citizens to understand, I know that the minister talked a little bit about how in fact appointments to the committee are considered—the process they go through. Perhaps you can tell me what your role is with regard to those applicants whose names are being put forward to be members of the IRB. Perhaps you can give us a quick overview of how that selection process works.

Mr. Peter Showler: Certainly. I would be pleased to.

I hadn't really wanted to repeat the remarks of the minister, but they were substantially correct. As the chairperson of the board, I sit as a member of the ministerial advisory committee. So I'm one of those persons who sits on the board. The board is responsible for secretariat services to the committee. But the way she described the process is correct, in that the selection process is directed toward ensuring that all candidates are seen to be adequately competent to sit as members of the board.

• 1015

In that regard, there is first of all the preliminary requirement that they have either a university degree or a substantial equivalent in their professional experience, plus five years of professional experience. There is a very significant written examination, a very significant interview by a member of the committee, then a decision by the committee on whether that candidate is to be recommended. As the minister stated, 70% of the candidates who apply are not recommended to the minister for possible appointment to the board. So that is how that process operates today.

The legislation requires that at least 10% of the members of the board be lawyers with five years experience, and in actuality approximately 35% of the members of the board are lawyers or notaires in the province of Quebec.

The Chair: Inky.

Mr. Inky Mark: I just want to ask you what I asked the minister. Do you agree that SIRC decisions should be binding?

Mr. Peter Showler: Which decision?

Mr. Inky Mark: That decisions from SIRC, the Security Intelligence Review Committee, should be binding on any particular case.

Mr. Peter Showler: As far as I'm aware, that issue has not even arisen before the board. Perhaps the senior legal counsel of the board, Philip Palmer, who's with me here today, may want to make a comment, if he knows something about that.

Mr. Philip Palmer (Senior Legal Counsel, Immigration and Refugee Board): As far as I understand, it doesn't impact on any of our procedures as such. It issues advisory rulings to the government.

Mr. Inky Mark: The problem again, Philip, is that it makes no sense, because especially with security files... The job of SIRC and the RCMP is to provide information. If they're going to review cases and they make a deliberation, certainly that information should have some weight somewhere. So that's why I've asked the minister whether what they determine should be binding.

Mr. Philip Palmer: Yes, I understand the question, and without commenting on the merits of it, it's just that I'm not sure that we, as a board, have any special knowledge to answer that question. We're not involved in its processes, nor does the SIRC issue advisory opinions to us on any of the matters within its competences.

Mr. Inky Mark: Perhaps I can rephrase it. If it were in legislation that their decisions would be binding on your files, would that be helpful? Because at this time there are two separate entities that don't seem to have any kind of linkage in the work they do.

Mr. Philip Palmer: I'm not aware of a situation in which their rulings would affect a process before the board.

The Chair: On the basis that this bill contemplates a front-end screening process to ensure safety to the Canadian community, as it relates to the front-end screening—criminality and so on—that's part of the new bill. In determining that front-end screening, how in fact will the IRB interface with those regulatory bodies that will feed that security front-end screening into the system, so that you can make a particular judgment call and/or ruling on whether or not a person should be not only admitted, but given refugee status in this country?

Mr. Peter Showler: Perhaps I can answer that in two ways. It very much depends on the kind of decision you're asking about, because of course a quite different decision is being made by a refugee decision-maker before the RPB, as opposed to the Immigration Appeal Division.

However, nothing in the legislation in any way binds our decision-makers. Any information that came from any external body, including SIRC, would simply be evidence that would be placed before the appropriate decision-making body, and it would be solely evidence that would be considered to apply the law as contained within the Immigration and Refugee Protection Act. There is no overriding legislation in some other act. So in that sense, our decision-makers are not bound at all.

Mr. Inky Mark: If the legislation included that their decision be binding, would that create a problem for you?

Mr. Peter Showler: Yes, it would. I don't like to think of our decision-makers being bound by anything other than the evidence and the law.

• 1020

The Chair: Thank you.

John.

Mr. John McCallum: We had quite a lot of questions regarding the competency of the officers, this being related, in part, to the political nature of the appointment of a good number of them. The concern was also raised about how this would become even more important when we move to one person deciding, as opposed to two. We were told of one officer from a particular country, which I won't mention, who always refused refugee claims from that country. So if one happened to get that one person, one would be very unlucky in a situation where there was just one person.

Can you give us assurances regarding this competency issue? And I suppose the same would apply in the courts: if you have a judge who is known for certain idiosyncrasies, you're unlucky. But is there any way, if there's a particular person who is perceived to have a bias, one can avoid such a person?

Mr. Peter Showler: The first issue is one of independence of the decision-maker. Of course, that is a cornerstone of our law. Once a person is granted the authority to be a decision-maker under legislation, in this case an appointment by the Governor in Council, that's relatively sacred. And as you mentioned already, the same example as with judges, there may be perceptions that certain decision-makers have leanings one way or another. That's potentially not only an issue of competence; it's also, potentially, an issue of bias.

Let me address how I think the new act assists us in that regard. And before we do that, I would like to say one thing. I have read some of the testimony you've heard over the past few days across the country. Please recognize that the Immigration and Refugee Board, if we're talking particularly about refugee cases, makes 30,000 decisions a year, and approximately 20% of those are either withdrawals or abandonments. So we're really talking about approximately 24,000 substantial decisions a year. I think you now have a taste of the difficulty of that kind of decision-making, in terms of the nature of the evidence, etc. Fewer than 1% of the board's cases have been historically overturned by the Federal Court upon judicial review.

Now there is a limited application to the Federal Court, and that's why the new legislation has this Refugee Appeal Division, which is an internal review and it's a substantial review. It's an appeal; it's not a judicial review.

So there is no doubt that if you're making that number of decisions mistakes are going to occur. Mistakes occur sometimes because of misunderstanding, and occasionally because of bias because people are human. That's why there's a refugee appeal division in place. Hopefully, this is the place that's going to catch the errors that have not been caught under the present system.

Mr. John McCallum: What about competence as it concerns proper training?

Mr. Peter Showler: First of all, it's a fair comment—and I've said this to the committee before—that going to a single-member decision model from a two-member decision model definitely places more demand and responsibility upon that individual decision-maker. It's easier to make those decisions with a colleague beside you. The board has recognized this over the last year, and it has been in the last year that we've already introduced a customized training program, because we recognize that now is the point where we must be training those decision-makers for this legislation that is forthcoming, given that it is passed approximately in its present form.

We have a customized training program in place that is far more intensive training than was previously used at the board. After three weeks initial training each member is assigned to a training team, which consists of a legal adviser, his coordinator, a mentor, and also what we call a professional development coach. And they work very closely with that member, up until the point where they're satisfied that they are fully prepared to sit as single members. That will be the same case in the new legislation. Please note there's provision there for the chair to delegate three-member panels; they will sit in three-member panels until they're prepared to sit as single members.

• 1025

The Chair: Thank you.

I want to ask you, Peter, with regard to moving to a single panel and the fact that this legislation talks about a new Refugee Appeal Division, which you just spoke of, do you anticipate that there are going to be a lot more appeals to the RAD on the basis of what you've just indicated about how single-member panels might make those difficult and more complex determinations?

Mr. Peter Showler: Because there is an appeal as of right in the legislation, we expect that the great majority of refused claimants will seek the appeal to the Refugee Appeal Division, and we've built that into our planning. We're expecting that there will be approximately 8,000 to 9,000 appeals per year to the Refugee Appeal Division. So we are expecting they will be coming forward.

In terms of the ones that are successful, that is far more difficult to estimate. That would be a matter of speculation.

The Chair: Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: Thank you, Mr. Chairman.

You mentioned earlier that you had read a number of the documents that were presented last week. Here is my first question. Did you have time to read the submission where some researchers from McGill University and Montreal University propose, among other things, a selection and appointment process for commissioners? If so, I'd like to know whether you feel that using such a process would improve the quality of the commissioners, would change nothing or would reduce it? You can eliminate the third option right now.

There is something rather troubling mentioned this morning, I think, in the Gazette. There are 52 commissioners and, according to the minister—and you confirmed it—70% of all those who apply to become commissioners are not accepted. So you are left with 30%. The individuals who are selected are undoubtedly qualified, but almost 75% of them are clearly associated with the same political party, which happens to be the present government party.

You talk about the need to have independent commissioners, and I couldn't agree more. However, I find it difficult to believe such an independence exists in fact when those commissioners' term, which varies and can be renewed, is renewed by the Governor-in-Council. I just have a little trouble with this.

I am sure you can clarify this for me.

[English]

Mr. Peter Showler: Certainly, I'll respond to both.

First of all, I assume that in the first one you're referring to the report of François Crépeau.

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes.

[English]

Mr. Peter Showler: Professor Crépeau has made previous suggestions in regard to improvements in the appointment system. In terms of whether or not those suggestions would be more effective, frankly, Madam, I must say that is a policy decision for the government. If they wish to have a different system of appointment rather than through the Governor in Council, then that is certainly within the power of the government to do.

In regard to the independence of the members, and particularly in regard to the comments in terms of the previous political connections of some of the members of the board, first of all, one thing I didn't say before, Mr. Fontana, which is important to know, is that at the level of the ministerial advisory committee—and I sit on that committee—the political affiliations or non-affiliations of virtually all of those candidates are completely unknown to that committee. And I can assure you personally as a member that this has never been a factor in the decision to recommend or not recommend. So at that level, in terms of assessing the fundamental competence, it is literally not an issue. Whether or not it becomes an issue after that is something I would not have any regard to or knowledge of.

Regardless of the point, certainly once they become members of the board, the test and the expectation of the board is that they hear cases as independent members. In other words, they consider the evidence before them and they make the decisions based upon the law, not upon other considerations.

• 1030

Certainly I've had no indication or evidence that members sitting on this board take political considerations into account in making those decisions.

[Translation]

The Chair: Ms. Dalphond-Guiral, have you finished?

Ms. Madeleine Dalphond-Guiral: Yes, for now.

[English]

The Chair: Okay.

Jerry Pickard.

Mr. Jerry Pickard (Chatham—Kent Essex, Lib.): Thank you, Mr. Chairman.

I have a couple of questions that may clarify, in my mind, the three-member panel to a single individual. When you have three people hearing an immigration case, is it usual for all three to agree? I've looked for a percentage, as everybody looks at that to see a basis. Unanimity is what I'm looking for, because that in fact reinforces the idea that one person could be as competent as three.

We're looking at a cost-cutting measure. I understand that. Why have three people do a job that one can do? The assurance, in my mind—and maybe in the minds of a lot of other Canadians—would be that when you're hearing a three-member panel, usually all three come to the same conclusion.

Mr. Peter Showler: You anticipate the answer, I think. I remind you, in regard to the refugee division right now, it's a two-member panel that hears the case, not a three-member panel. We have this unique system where there are two decision-makers, and if there's a split decision it goes in favour of the claimant.

Currently, more than 99% of the cases are determined on a unanimous basis. Fewer than 1% of the cases have dissent between those two panel members.

Mr. Jerry Pickard: Thank you, Peter. That's very reassuring, in my mind.

With the other point you made, I have a little reservation about a comment. I know you have very good people in those positions. There's no question about that. You've made it very clear that you're extremely selective. But often, over time, competency can change and other factors enter in. Over time, there may be things that occur that would require a change. I really think that is a fact of life.

What bothers me is that you almost put the decision of the Governor in Council to be the final decision. I saw no suggestion where there would be a review under any circumstance. I really feel that's overly fair on one side.

I know that when you're hearing cases there are going to be clients who don't like the decision. Clearly, that can be the case. For anyone making a decision, half of the time you're right and half of the time you're wrong, depending upon who you're talking to and the circumstances. But I still don't think we can leave anybody in an ultimate position of power, and I think that's what I heard from you.

Mr. Peter Showler: No. If you did, then I wasn't clear in what I said. This is partially a supplementary response to your question, particularly in terms of the length of the mandate.

The legislation provides, under present and forthcoming legislation, for the Governor in Council to appoint a member up to a period of seven years. The minister's present practice, since I have been the chair, has been for first appointments to be for a period of two years, with the expectation that there would be a reappointment for a far lengthier period, more in the range of five years.

The board has quite a highly developed evaluation system in place, an appraisal system of members. Primarily, that appraisal system is there for the purposes of training, not for the reappointment issues. If there's any way in which we can identify member needs or member support, we do it and provide them with additional training through the customised training program.

• 1035

At the end of approximately 18 months, anticipating reappointment, the board advises the minister on what our view is of the member's performance over the past 18 months. The minister certainly will take that into account in making recommendations to the Governor in Council. Of course it still lies with the Governor in Council to make those reappointment decisions. Certainly there is detailed information provided to the minister prior to the reappointment decision.

Mr. Jerry Pickard: I have one final small point that would help clarify the issue. What is the length of service most people on the board would serve? Is it for two, five, ten, or fifteen years? How many years has the average person served in those capacities?

Mr. Peter Showler: Through the history of the board, it has varied. There has been some inconsistency. In the last few years, the board has achieved greater consistency in that regard. As I stated, the minister and the government have been quite consistent, and reappointments have been in the five-year range. That's looking at a total of seven.

The minister has stated that they certainly would consider an additional mandate. Ordinarily, a third mandate would be in the range of three years. The anticipation is ten years would be an appropriate period of time for a member to sit in total. We have three members who actually have sat for the entire history of the board, for slightly more than eleven years. There are a few members who have exceeded the ten-year period.

The Chair: Thank you very much.

Judy.

Ms. Judy Wasylycia-Leis: Thanks, Mr. Chairperson.

I don't know if this is the right time and place to raise these questions, but my concerns are with respect to some of the testimony we heard during the hearings pertaining to the loss of authority or powers of the IRB.

We heard some concerns about the competency of board members, appointments, and the processes used. The biggest concerns we heard were around clauses 101, 110, 111, 112, 114, the shift away from the use of the IRB to a different process within the department, and the removal of an ability for refugees to seek redress to have their claims heard through our independent Immigration Review Board.

Do you support these changes? Some of the concerns we heard were very serious and emotional testimony. Are these concerns legitimate?

At this point we should be deleting clauses, such all of clause 101. It gives powers to the Refugee Protection Division when they should stay with the IRB. We should be dealing with the whole issue of loss of second claims to the IRB. We should be dealing with sections on the pre-removal risk assessment area that has been moved from your authority to another process.

I guess those are my open-ended and wide-ranging questions.

The Chair: Peter, before you answer the question, for the benefit of the committee, this question is not unlike the one posed to you by the committee on March 20. I want to thank you, Peter.

So the members know, Peter and the IRB have given us a pretty substantive response to the question of how Bill C-31 and the new Bill C-11 compare to the process. There are flow charts. It's a very comprehensive book that shows as a general question, Judy, how the IRB would function under Bill C-11 as it relates to how it functions now. I think this is a very useful document. It's in your offices. You may want to look at it.

Perhaps, Peter, you could answer the general question. Then one can refer to this document.

• 1040

Mr. Peter Showler: It's a difficult question for me to answer.

You referred to the eligibility section under clause 101. The government has decided that certain persons, particularly those who have been convicted of serious crimes or have committed international crimes or human rights abuses, will no longer have access to the refugee determination process. That is a decision of the government. It's not a matter of my jurisdiction.

The board is capable of hearing those cases. It's the government's decision—primarily because of time considerations, and also because in their view, even if these persons were determined to be refugees, there would still be the consideration of removing them from the country. This would be either because of a danger to Canada, security issues, or the severity of the criminality. That is the logic for diverting them from the system.

But it is also correct that they have not gone through any determination on whether or not they are at risk of persecution, or any of the other protections that are under the consolidated grounds now.

I'm not sure what else I can say to that. As you know, the minister has modified that decision considerably—particularly for foreign criminal convictions where there was some concern that those convictions would certainly not meet the international standards that apply in Canada. Unless those persons were also determined to be a danger to Canada, they would now receive their refugee hearings.

The Chair: Judy, any further questions?

Ms. Judy Wasylycia-Leis: If we worked as a committee to try to put back some of the authority of your organization, the IRB, would you object? Would there be any problems in terms of either workload or philosophy?

Mr. Peter Showler: Well, let's look at two different categories. Certainly in terms of the people diverted from their original claims, we're not talking about that large a number. So although those claims are actually the most difficult, because they often raise issues of exclusion from the refugee definition, certainly the board has the capacity to do that.

The repeat claims are something else again. Perhaps it would be helpful for the committee to know that over the past four years, approximately 2% of the refugee division's caseload has been repeat claimants. That's in the range of about 1,900 claims since 1997.

What we don't know—and this is something that perhaps would also interest the committee—is that as well as repeat claims, there have also been withdrawals and abandonments, and the issue of whether they would have access to the board again. The board never sees a significant number of claims because they're made within Canada—not at the border—and then the applicants don't pursue those claims. So those claims never come to the board.

With the deemed referral rule that will be in place, where after three working days there will be a deemed referral to the board, we will have a significant number of those cases. We don't know how many there are. The department may know, but we don't. Well, if all those abandonments had a second access to the board at some point, that would be a significant logistical burden on the board.

The Chair: Peter, I know the minister was asked a question about this second opportunity. We talked about the RAD, the Refugee Appeal Division, based on some testimony we heard from people. But the RAD would be a paper review, not necessarily an oral review.

I think we heard testimony indicating that if people need to go back to the board because of a substantive change of circumstance, then the RAD would be the vehicle by which to get a second hearing, but that second hearing would be on paper, not an oral hearing. Is that right? How do you anticipate that happening?

Mr. Peter Showler: Well, currently it's going to the pre-removal risk assessment process. If it were to come to the board, I expect the natural place for it would be the RAD, as a paper review. The RAD is going to be a small, centralized appeal division, and if you want to ask questions about that later, I'll explain why I think that's necessary. But they would only be in a position to entertain written submissions; they would not be in a position to hear live testimony.

The RAD would certainly have the expertise to do that if it were an issue limited to change of circumstances.

• 1045

The Chair: Perhaps while we have an opportunity, you might want to talk a bit about the RAD. It is an entirely new mechanism, so you might want to take us through how it works, if you could, so we can better understand it.

Mr. Peter Showler: Certainly; I would be pleased to do so. I know there were significant comments on that across the country.

Let's clarify that the Refugee Appeal Division has two quite separate objectives. The first we've already discussed: it's the safety net, if you will, to catch the inevitable mistakes that are bound to occur at the first level. It is a full review on issues of fact, issues of law, issues of fact and law. In that sense, it's very different from the present judicial review process. It will be able to look substantively at the decisions, and if the RAD has a different view of the facts of the case, it can either overturn the decision or confirm it.

I hope you're aware that ordinarily, judicial review is very limited. It's really only a review if there's been an error of law. The judicial review process decision does not replace that of the first-level decision-makers. The Refugee Appeal Division performs a far more substantive review.

The RAD has a second objective as well, which is to ensure more coherent and consistent jurisprudence and decision-making at the first level. In order to do that, there's a provision for the division to have three-member panels. Where there are serious defined issues, they will issue a decision that will have precedential value. That decision will be binding on the RPD, on the first-level decision-makers, as well as on the Refugee Appeal Division itself. So it has the two separate functions.

It's important to understand that the government expects this RAD process to take place within three to four months. That can only happen if it's a paper review, not live testimony. But if there were any new evidence, in addition to the record submitted to the Refugee Appeal Division, inevitably, that new evidence would require a live hearing to test its credibility. That's why the RAD is designed the way it is.

The Chair: Okay, let me ask you specifically... During our testimony, some people who had come from Windsor and/or Fort Erie talked about their experiences. They said that some claims had been refused because of cultural problems: one spouse may not have wanted to introduce certain evidence into the refugee determination process because the other spouse was there, so that refugee determination was refused. Then those applicants came back, because under the existing system a person can essentially reapply after three months. So there's this whole question of a revolving door.

Now, Bill C-11 says you can only have one kick at the can unless there are exceptional changes in circumstances. So based on what you said, I want to ask you specifically: if there were in fact a significant change in circumstance—if a spouse came forward and said there was violence and abuse—would you consider that new evidence as an opportunity to grant a second hearing in that paper review ? Would you do that, oral or otherwise, based on that changed circumstance? The minister was asked that question, and said such applicants could either go to you, or to the minister under H and C, or they could go to the courts. I'm just trying to picture how this system will work for a second hearing.

Mr. Peter Showler: I think we're talking about two separate processes. Ordinarily, for decisions of the Refugee Protection Division, there would have to be an immediate appeal. The appeal period is in the range of 15 to 30 days, and allows claimants to file an appeal of the original decision to the Refugee Appeal Division. The current legislation has no provisions to consider new issues.

So in my view, it would be very difficult for a new issue—such as arguments that counsel was incompetent, or a person didn't receive a fair hearing, or a change in the argument presented to the first level—to come before the Refugee Appeal Division. If my senior legal counsel has a contrary view, I'd be delighted to hear it, but I think that kind of evidence is going to be difficult to bring before the RAD. That's when you're talking about the first provision.

• 1050

My counsel referred to a separate process, and I'm going to get to it, but I don't want to go there too quickly. First I want to separate that from the notion of these repeat claims.

If someone leaves the country for what would now be a period of six months, if they return in less than six months there's no problem. If they stay out of the country for six months or more, then subject to certain kinds of criminality exclusions, their change of circumstances will be reviewed by an immigration officer during the process. But that review is primarily concerned with change of country circumstances. That's what is really being looking at, not change of personal circumstances.

You're really looking at the kinds of situations where people are coming back and saying something quite different. I think you have to be aware—particularly if you heard the testimony in Windsor—that there are some situations where someone withdrew or abandoned the claim, and the allegation is that they withdrew or abandoned because of poor advice from a lawyer, or because there was a joint claim and the female claimant wasn't even consulted. Those kinds of injustices will arise.

Well, if you look at paragraph 113(a), what will be looked at is only evidence that has arisen since the original rejection. So even there, the legislation currently doesn't really allow for that information to come forward very easily. Under the present legislation, the appropriate forum for that decision will lie with the minister's office, in terms of a humanitarian and compassionate consideration.

My counsel made one other suggestion that does arise within the board, and it's not within the legislation. There is always a provision for reopening before the board. That ordinarily arises in situations where there has been a breach of natural justice. It's not a right that arises out of law, it arises out of common law: where there has been a clear breach of natural justice, the tribunal can consider reopening a case.

Ordinarily, a tribunal would consider that matter before anyone's removal from Canada. I don't think it's contemplated that the reopening process would be available to claimants who had left the country for a period and then returned.

In the current model, in my view, the only decision-making body to consider that kind of evidence would be within the humanitarian and compassionate application process.

The Chair: Inky.

Mr. Inky Mark: If I'm hearing properly, are you saying that if there's circumstantial evidence for those outside the country on the refugee side, they can file for the reopening of a case? Is that correct?

Mr. Peter Showler: Those are exceptional circumstances. There has to have been a breach of natural justice. That is an extremely rare circumstance.

One of the classic examples, particularly for cases of abandonment, is where there's clear evidence that the person did not receive the notice of hearing through a clerical error. They have an obligation to provide their current address to the tribunal, so ordinarily that wouldn't be a breach of natural justice. This is more for circumstances where there was an actual clerical error—the applicant had registered the new address, and somehow the notice was sent to the last address. That would be a clear example of a case that would be reopened.

Ordinarily that process is not available for retrying on the original facts filed, perhaps because an applicant had a bad counsel who didn't fully advise him or her. Ordinarily, it's the egregious errors that are successful under that process. I don't see it as a back-door appeal that's going to be available to a large number of people.

Mr. Inky Mark: In the Immigration Appeal Division, could you please rationalize for me why new evidence wouldn't justify reopening the cases of those people who are landed immigrants or are still in the country?

Mr. Peter Showler: There can be a reopening before the Immigration Appeal Division. But you've switched from refugee situations to the Immigration Appeal Division, which is a different situation.

Mr. Inky Mark: The same rules apply, though, as you've indicated.

• 1055

Mr. Peter Showler: Yes. The only difference is that provided within the statute there is a limited right of reopening, and it specifically refers to that in the new bill.

Mr. Inky Mark: But I still can't understand. Other than what you've indicated—that if we had breached the principle of natural justice, that's the only rationale for rehearing a case—why would new evidence not be reasonable enough to reopen it, to get a second appeal?

Mr. Peter Showler: Well, because that's not a breach of natural justice. It's extremely limited under the common-law authorities, very limited in the examples I gave. Otherwise it does become an appeal process, and that's not what it's intended for and that's not what it's used for.

Mr. Inky Mark: Even with new evidence? That's still your determination, whether the evidence is new or old, and you're saying the numbers are small to start with.

Mr. Philip Palmer: But as you say, the system is designed so that new evidence can be picked up and taken into consideration in the PRRA.

The Chair: That is handled under Immigration, not the IRB.

Mr. Philip Palmer: That's right.

The Chair: That was another question, as to where it should be, and I think we've asked that question of the minister.

There's an awful lot of faith and trust in the IRB as opposed to where the PDRCC now really lies, which is in Immigration, or the PRRA will reside in Immigration. But that's not you; that's the department.

Anita, as a supplement to that...

Ms. Anita Neville (Winnipeg South Centre, Lib.): As a bit of clarification, I'm finding what you're telling us not of comfort, to be perfectly candid.

In terms of the second appeal, what I'm hearing from you is that it's very difficult for somebody who has not given full disclosure of all the issues they're dealing with to come back a second time for reconsideration, except under the PRRA, and the PRRA only deals with new circumstances.

What I would further like—I'm not a lawyer—is some indication of what natural justice means.

Mr. Peter Showler: Certainly.

First of all, again I want to be clear on what you're talking about when you're talking about a second appeal or a second try. You're speaking once again where they've gone through the process, they've been removed from the country, and they're coming back after six months. Is that what you're talking about?

Ms. Anita Neville: They're coming back after six months, and—

The Chair: They're reapplying under different circumstances.

Ms. Anita Neville: Excuse me, Mr. Chair, they're applying based on the same information that they were not able or willing to bring forth the first time.

Is there an opportunity for their concerns or their appeal to be considered, given that the information is information they had six months prior but for a whole host of reasons were not able to put forward?

Mr. Peter Showler: No. Under the current bill in its present circumstances, they do not have access to the Immigration and Refugee Board for rehearing of their case in any regard whatsoever. They will have to go to the pre-removal risk assessment process, which is an immigration department decision-maker. That will be their only course of access, in addition to, as the minister stated this morning, making a special humanitarian application to the minister. But there is no access to the board the second time around for that situation under the legislation.

Ms. Anita Neville: And that's based on having the knowledge of the information, where they can go.

Mr. Peter Showler: In either event, it doesn't matter if you're in a situation where you didn't plead your evidence the first time and you should have, or if you're in a situation where there's a change of circumstances.

If there's a change of circumstances—you're returning after six months, there has been a coup in your country since, and all persons of your ethnic group are now being attacked in some manner—the appropriate forum where the claimant will have to argue that will be at the removal process before a decision-maker.

As the minister pointed out, one of the amendments she has placed in the bill is that if there are serious issues of credibility, there is a provision for a live hearing at that stage at the discretion of the decision-maker. But none of that involves the Immigration and Refugee Board.

The Chair: On the question of natural justice, if you could...

Mr. Peter Showler: I tried to give an example of that.

• 1100

Where a person literally does not receive notice of their hearing whatsoever, that would be an example of natural justice. If you simply had counsel who did not adequately advise you or did not listen to you, ordinarily that is not seen as a breach of natural justice.

If you had an extraordinary circumstance, and again I come back to the Windsor situation, which happens if, for example, you have a counsel representing a husband and a wife and in actuality gives them advice that only considers the interest of the husband and does not consider the wife—and as you know, there are those situations where there's tremendous deference solely to the male—that might be a breach of natural justice because she did not receive right to counsel in a very fundamental way. So there are areas, but the circumstances really have to be quite serious.

But I want to remind the committee that all of that is in terms of while they remain in Canada. I don't think it's contemplated within the legislation at all, once they've been removed, coming back six months later and seeking reopening. That certainly hasn't been contemplated. But since the whole process of reopening is a common-law authority rather than one within the statute, it's simply silent on the issue at the moment.

The Chair: Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: Mr. Chairman, during our hearings, it was mentioned several times that refugees should automatically be granted the permanent resident status. Indeed, as you know, a number of refugees have to wait years before being recognized as permanent residents, with all that implies.

I was wondering if, in your rulings, you mention the assessment you have made of the capacity, for Mr. or Mrs. X, to get identification papers that would be considered acceptable by the government. Do you say, for example, that for Mr. or Mrs. X, it would be difficult, if not impossible, but that, even if those papers are not produced, you recommend they be granted the permanent resident status. Is that part of your jurisdiction or do you have nothing to do with this?

[English]

Mr. Peter Showler: I can provide you with some comments in that regard, although in terms of the landing decision itself, of course, that's beyond the mandate of the board.

In terms of those delays, perhaps this would assist you, because I saw the comments by witnesses saying that the refugee decision itself should also be consistent with landing, that they should be landed. I want to remind you, and I think it's important that you understand, the added steps that the department takes are primarily to confirm the criminality and security issues of that person. They are not necessarily known at that time. There is a front-end review, but there is a more elaborate security review done afterwards.

What the board is deciding is whether or not this person has a fear of persecution or is a person in need of protection. They're not necessarily looking at the same kind of information that the department would consider in order to decide whether or not there's a security risk and they're being landed as permanent residents. That's the one part of it.

The second question you're asking, which is a little more subtle, is what about identity? It has often been pointed out, isn't that part of the refugee determination process, to decide the identify? Well, it is and it isn't. We are just trying to decide whether or not that person has a fear of persecution.

For example, if they identify themselves as having a certain name, but the decision-maker is satisfied that the person—I will use this example because it's a very obvious one—is Tutsi, is from Rwanda, and that quite horrific things have happened to this person, and that if he or she returns, those additional elements of persecution would happen, that's all they need to make their decision that this person has a fear of persecution. They may be satisfied that the person is Tutsi and from Rwanda; they may not necessarily know whether that is this person's specific name.

So there is an added process that has to take place. That's why it's not necessarily the same process.

Does that help you, Madame?

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes, it helps. We have a lot of work to do.

• 1105

[English]

The Chair: Judy.

Ms. Judy Wasylycia-Leis: I wanted to come back to the situation we were just talking about in terms of right of appeal before the refugee board in the case of the kind of family our chairperson described. It is similar to a case we heard in Winnipeg where a family—a man, a woman, and a child—who applied for refugee status were turned down, appealed, lost, and went to the States.

Under the old rules of the existing act, after three months they would have come back to Canada and they would have found a way to raise not new information, because it wasn't new information, but difficult information pertaining, in the case of the Winnipeg family, to a woman who was gang-raped and couldn't tell her husband because his family would have dishonoured her and she just couldn't do it.

At least under the present act, the people helping her in Winnipeg found a way, raising this with the refugee board, with the IRB, to have the issue heard and have the situation dealt with without her even having to reveal this to her husband or her family and deal with the shame.

Under Bill C-11, that is not possible.

Mr. Peter Showler: That's correct.

Ms. Judy Wasylycia-Leis: Except for your suggestion that under common law and natural justice there's this remote, distant possibility that if we persist long and hard enough, somewhere down the line there might be some way—which of course in the case of some of these human difficulties is just not possible.

I just wanted to make the point that I think the onus is on us to find a way to amend this bill to allow at least for that circumstance to be addressed and for that avenue of appeal to be made and that kind of situation dealt with.

Mr. Peter Showler: I'd like to be completely clear on the one point. In terms of the common law and the reopening and my suggestion to you that it is not available, it has not been decided, but I don't want you thinking there's something there that probably is not there on that one point.

The Chair: Thank you, Peter.

Judy, I think the minister had indicated, and perhaps we never had an opportunity of discussing it at length, as we have with Peter, in terms of examples... She indicated there were appeal mechanisms—I'll use the word generally—such as the PRRA, the RAD, H and C, and court, and that all of those are possible under the existing act and under the new Bill C-11. Unfortunately, we have not been able to probe as deeply as we have with the IRB. It's safe to say, based on what Peter has just said for the IRB, you're right, there is not a second opportunity under Bill C-11 to access the IRB again.

Mr. Peter Showler: I think it's my duty to inform the committee, to assist you, that we did look at our statistics in terms of the number of cases. I mentioned that since 1997, approximately 2% have come back as repeat claims. I can tell you that of those, approximately 20% were successful on their rehearing. I think it's important for you to know that.

The policy issue is not something for the head of a tribunal to address, but it's clear that the policy issues are the issue of closure, and in the raw issue it's the issue of expense and resources. It is very demanding to go through a refugee proceeding, particularly with an appeal division process. It is a question for the government and this committee to decide to what degree there is going to be a devotion of time. Also, in terms of the delays, how long is the person going to remain in the country a second time and use all of the resources that takes of the Canadian government and people? That is a decision for you and the government.

The Chair: Thank you, Peter and Phil.

Again to the members, there's a pretty substantive document that you may want to review, obviously in the next number of days. I think it's a very good document that points out how the system works under the new system and those very important questions and matters that we've discussed.

Thank you very much to the IRB again. Peter and Philip, you've been very, very helpful.

Before we leave as a committee, I just want to go over a couple of the ground rules, if I could. I know we're going to get together on Thursday morning. I hope it will be a session that will deal with what we heard, the issues of the brainstorming session, some very, very key issues, and start talking a little bit informally about what we've heard and where we might want to go. We'll get into this. The week after, Tuesday, Wednesday, and Thursday, I'd very much like to get into the clause-by-clause.

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In the spirit of cooperation and working together, I would hope that after Thursday's meeting a number of amendments might be tabled with the committee so that we can find out exactly where everyone is coming from. I know there are some amendments. I know, Inky, that you've already put some before the clerks, or at least sent them over. I don't have a copy of those. We're going to get all of those.

I'll recognize Anita and John and Yolande for the purposes of essentially tabling some possible amendments. I want you to have them early so that you can see where these three members are coming from, in the spirit of cooperation.

Yes, Anita.

Ms. Anita Neville: Thank you, Mr. Chair.

I mentioned three of the four prior to this, in the hearings last week. I have both language copies of them.

In clause 3, I want to add the word “multicultural” in that.

As I indicated before, and I have not spoken to this, in subclause 25(1) I want to delete the words “in the Minister's discretion” and indicate “the Minister may examine the circumstances”.

In clause 26, I want to replace lines 37 to 39 on page 12 with the words “may be taken into account”.

In clause 42, I want to add on line 14 after the words “permanent resident” the words “or a protected person” is inadmissible.

I'll speak to those when we're in discussion.

The Chair: Yes, we will. In fact, the researcher I hope is preparing an issues paper for us for Thursday so that we can talk about these things. We can also include any amendments that in fact have come forward to help us exactly feel out where everybody else is.

John, Yolande, and then Inky.

Mr. John McCallum: What I'm proposing is mainly what I talked about before: to limit the scope of the regulations and to limit the power of an individual immigration officer with respect to deportation and examination. I already mentioned that on our trip.

The only other thing is a new proposed amendment that would remove immunity from immigration officers acting in the execution of their duties. That's clause 130.

The Chair: Thank you, John.

Yolande.

[Translation]

Ms. Yolande Thibeault (Saint-Lambert, Lib.): My amendments deal with the official languages.

I propose that Bill C-11, section 3, be amended by adding, after line 11, page 2:

b.1) to support the development of the official languages communities of Canada;

I also propose that Bill C-11, section 3, be amended by replacing lines 10 to 18, page 4, with:

d) ensures that decisions under this act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination, and of the equality of English and French as the official languages of Canada;

I also propose a new paragraph e):

e) supports the government of Canada's commitment to promote the development of Canada's English- and French-speaking minorities.

[English]

The Chair: Okay.

Inky.

Mr. Inky Mark: Mr. Chair, I will be delighted to share our amendments. They will certainly be wide-ranging and reflect the views we've heard from our witnesses.

The Chair: Okay.

Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: As yet, I have nothing written down, but it's coming.

[English]

The Chair: Judy.

Ms. Judy Wasylycia-Leis: Sorry, I'm running behind in terms of having submitted some of these—

The Chair: There's no hurry.

Ms. Judy Wasylycia-Leis: I could give you an indication, and I will try to submit them. You'd like them before Thursday?

The Chair: Or perhaps on Thursday as we enter into the discussions, but that's not necessary. Thursday is going to be a nice informal discussion of the members, now that we've heard the minister, we've heard the IRB, we've heard the people, to see exactly what those broad issues are. I think the research staff will prepare a paper for us.

I must tell you I'm running into some difficulties in terms of translation, because I guess they're busy as heck. I'm trying to exert some pressure that this issue paper that we'll be able to discuss on Thursday is fully prepared in both official languages so that we can move on and so on.

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You're right, we can table them on Thursday, or we can table them thereafter. I appreciate the fact that some members have already started to work on some amendments, and they want to table them so that I can make sure you have them for Thursday's discussion.

Thank you. We're adjourned until Thursday at 9 a.m.