:
We'll begin our committee hearing this morning as we continue our study of refugee issues.
Today we will be dealing with the backlog in the Federal Court. To help us understand the problem of backlogs and how best to deal with that problem, we've invited witnesses to come along this morning. We have witnesses from the Federal Court of Canada, who will be here from now until about 10 a.m., after which we have more witnesses coming in.
I welcome you to our committee meeting this morning. As you are aware, I think you have opening remarks that you will make, and generally these run about ten minutes or so, after which we open our meeting to committee members, who might want to ask questions or have a discussion with you about your statement and what have you.
I will pass it over to you, gentlemen. You can introduce yourselves, and we'll begin our committee meeting. There is an interpretation device down below, and it might be better for hearing purposes if you plug it in. I noticed that you were straining a little bit to hear me, and my flu doesn't help any. Maybe you could use your little earpiece and you will hear me a lot better.
I'll just pass it over to you to make your opening statement.
Thank you.
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In my field, I am used to being brief.
[English]
The Courts Administration Service Act provides for a unified provision of administrative services for the four federal courts: the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of Canada, and the Tax Court of Canada, each one of them being a superior court of record.
The chief administrator is the deputy head of the Courts Administration Service, and the chief administrator has all the powers necessary for the overall effective and efficient management of the administration of all four courts. There's one central administration for all four courts.
The chief administrator must consult with the four chief justices in relation to administrative matters pertaining to the operations of their own courts. The Courts Administration Service Act does distinguish between administrative functions, which fall under the chief administrator's jurisdiction, and judicial functions, which fall under the judiciary.
Consultation and coordination between the administrative and judicial activities are key to ensuring the optimal administration of justice for all Canadians, but primacy of the act is accorded to the judiciary, as the chief justices may issue binding directions in writing to the chief administrator with respect to any matter within their authority. No such binding directions have been issued so far.
[Translation]
The Federal Court is presided by Chief Justice Allan Lutfy. There are 33 Federal Court judges and five Prothonotaries in the Federal Court. There is currently one position for prothonotary that is vacant. In 2005, there were 9,731 proceedings instituted in the CAS Federal Court registry of which approximately 6,000 were refugee cases. During that year, 6,939 cases were determined by the Federal Court in the refugee area. These decisions were in the context of applications for judicial review, which process is described in the following section.
Immigration and refugee matters fall under the statutory jurisdiction of the Federal Court, which can hear applications to review decisions made by the Immigration and Refugee Board, Citizenship and Immigration Canada and the Canada Border Services Agency pursuant to the Federal Courts Act and the Immigration and Refugee Protection Act. Section 18 of the Federal Courts Act gives the Federal Court exclusive judicial review jurisdiction over certain administrative tribunals.
The Immigration and Refugee Board, being a federal board, commission or tribunal, falls within the general review powers of the Federal Court. In most cases, it is necessary to obtain leave by a judge of the Federal Court under section 72(1) of the Immigration and Refugee Protection Act to commence an application for judicial review in the Federal Court.
Upon leave for judicial review being granted, the six grounds of review of a decision of a board, commission or tribunal by the Federal Court are found in section 18.1(4) of the Federal Courts Act.
I believe that you have a copy of the text. I will not read aloud each one of the six grounds for review, unless you wish that I do so.
[English]
On the application for leave for judicial review, there is a step-by-step process in the immigration and refugee context.
The applicant files an application for leave and for judicial review and serves certified copies on the respondent within 15 days of notification of the tribunal decision. The applicant pays a $50 filing fee, as set out in the federal immigration rules. The applicant must also file proof of service within 10 days of service.
The respondent files a notice of appearance and proof of service within 10 days from the service of the application. If required, the Federal Court registry will send a request to the tribunal for written reasons, or a notice that none exists.
The applicant must prepare and file a record, with proof of service, within 30 days of instituting the proceeding, or 30 days from receipt of the tribunal's reasons. The respondent then has 30 days to file the affidavit and memorandum of argument, together with proof of service. The applicant may file a reply memorandum within 10 days of service of the respondent's memorandum.
The application for leave is then considered without personal appearance of the parties to the proceeding. If leave is refused there's no appeal, and that concludes the case and closes the file.
Should the applicant be granted leave for judicial review, the next step in the process is moving from the application-for-leave stage to the process of judicial review.
[Translation]
I will briefly summarize the judicial review procedure.
If leave for judicial review is granted, a Federal Court order is issued, setting out details and time limits for the filing of further material, together with the date, time and place set for the hearing of the judicial review application.
The Federal Court registry sends the Federal Court order granting leave to the tribunal. The tribunal prepares a record and sends certified copies to the parties as well as to the Clerk of the Federal Court Registry.
The matter is heard and a decision is rendered by the Federal Court.
Should an error under one of the six grounds for review be found to have been made by the lower level tribunal, the tribunal decision is overturned by the Federal Court and the original decision is sent back to the tribunal for reconsideration.
The Federal Court judge rendering a decision of an immigration judicial review, may certify a question for appeal to the Federal Court of Appeal.
For a question to be certified, it must be “a serious question of general importance” and must invite the Court of Appeal to deal with the specific decision under appeal.
Should a question be certified from the Federal Court judicial review decision, the next step in the process is moving from the “judicial review” stage of the process to the “appeal” stage of the process.
[English]
I'll briefly explain the process before the Federal Court of Appeal.
An appeal to the Federal Court of Appeal must be filed within 30 days after the pronouncement of the Federal Court judgment under appeal.
The Court of Appeal is not restricted to answering the certified question. All issues raised in the appeal may be considered by the Court of Appeal.
It is, naturally, an opportunity to file an application for leave to the Supreme Court of Canada from the Federal Court of Appeal. However, I won't go into that process.
I stated earlier that 6,939 refugee cases were determined by the Federal Court in 2005. Of these cases, application for leave or judicial review were granted in 1,034 files.
That concludes my opening remarks.
We are both available for questions.
My question comes right after Mr. Komarnicki's--although it's not really a question, because you did give him an answer.
I would like to make a comment to the chair of this committee. When eventually we look at the type of report that this committee will wish to present to the House of Commons, I think it's important that when we look at the RAD, we see it not as being off and by itself but within the context of all the other types of appeals to which refused refugee claimants have access. I'm talking about humanitarian and compassionate grounds, I'm talking about risk of return, I'm talking about the Superior Court, and so on.
If I were a refugee claimant who had been refused and I went to the RAD, if the RAD existed, and the RAD told me, no, I couldn't do it, then obviously my next step would be to go on asking someone else, and someone else, and someone else. Because right now that's what the system allows, almost ad infinitum.
I would make the suggestion to the committee that when we come to our suggestions and recommendations for the minister and the House on the role of the RAD and whether the RAD should exist, we should put it in the context of all the appeals that are possible for refused refugee claimants. We should try to bring some kind of homogeneity and logic to the whole system of appeals on behalf of the refugee claimants.
I don't know whether you want to make a remark on that, Mr. Guénette.
:
Thank you very much, Mr. Chairman and committee members.
My apologies for arriving late. I went to the wrong door, being a creature of habit, and then wandered around and met Mr. Farrell downstairs, who showed me up.
I was asked to attend at the committee late last week—quite by surprise, because it's about four years ago that I did this study for the Department of Justice on legal aid. I've moved on to do work in other areas besides immigration over the past four years. It was a bit of a refresher course for me to go back and read my own paper.
I gather that the committee is interested in the issue of cost of the refugee appeal division. That was a peripheral part of the study we did on legal aid and legal aid cost drivers, which covered a whole lot of different things—global pressure, what's driving refugees to come to Canada, process problems at the first level and at the second level and at the court level. The RAD component was an important part, but only part of that broader study.
Excuse me. I'm a bit out of breath from running.
What we were looking at in that study was specifically the cost implications for legal aid. We concluded that the addition of an appeal level would have definite cost implications; that there would be added legal aid costs simply because there's more process. But the flip side of that is that the appeal division serves a very important purpose in actually simplifying the process.
The problem we have now with the first-level decision, and then the only recourse left being the pre-removal risk assessment process or judicial review, is that all the cases that are rejected, or a very high percentage of the cases that are rejected, seek leave in the Federal Court.
A significant percentage of these cases get leave, and when the Federal Court hears the cases, the most it can do is quash them and say that the decision was defective and then remit the case back to the refugee protection division for a new hearing.
The process in the Federal Court is intrinsically slow, partly because of court backlogs. I gather from Mr. Farrell that you've just heard witnesses testify that they, fortunately, have reduced their backlogs, which is very good to hear. But also, the court process itself is slow and cumbersome.
The idea behind the RAD is to have an expert tribunal of people who are familiar with country conditions and familiar with the issues the refugee protection division is dealing with and who can deal in a very efficient manner with the appeals.
The appeal division would also be different from the Federal Court, in that it would have the power to enter the correct decision rather than just quashing it and sending it back for a rehearing. If you look at its remedial power and think that it can get to the right decision more quickly in the cases where the first-level decision should be overturned, that's a significant time saving. Time is one of the biggest cost drivers in the entire asylum process—the delay of having people hanging around the country before removal, if they are slated for removal, or the delay in getting their status regularized, if they are people in need of protection.
The Federal Court would not disappear from the equation, because it's a plenary jurisdiction of the court to review the decisions of subordinate or statutory tribunals, but one can surmise that the deference that would be accorded to the decisions of the refugee appeal division would be higher than the deference that's currently accorded to the decisions of the refugee protection division, simply because it would be recognized, constituted, designed, and I trust recognized by the court as an expert tribunal.
We see this across the spectrum of administrative tribunals. Certain ones are accorded a very high level of deference—only a very small number of their decisions are ever quashed by the court—and I would submit that we could anticipate a comparably high level of judicial deference for the decisions of the refugee appeal division.
This means that we would get to final disposition on the merits of refugee claims more quickly than we do under the present system, and that would represent a net saving to the system, even though there would be predictable increased legal aid costs for representation in the proceedings before the appeal division.
That was the central hypothesis or thesis in the paper that we prepared for the Department of Justice.
Rather than speculating on what may be of interest to the committee, I would welcome any questions you might have, and I will try to answer them as best I can.
My primary preoccupation is system efficiency. That's probably shared by most members of this committee, who obviously are very concerned about having a refugee protection system that protects genuine refugees in need of protection and filters out those who are not in need of protection, and hopefully gets them removed from the country as quickly as possible.
:
The issue of recourse for refugee claimants is very difficult, and I think quite confusing. Madame Folco is very knowledgeable on this, having served on the board.
People talk about all this recourse that claimants have. But if you look under the current act, they have their hearing before a single member of the refugee division. They then have the right to seek leave for judicial review. That's not getting to the court; that's getting permission from the court to go to the court. I don't know what the current statistics are, but when I did the study only about 12% of cases got leave. So this meant that of those who were rejected and who sought leave, 88% were out of luck at that point.
Then their other recourse is the humanitarian and compassionate application, which is available to all immigrants. And it has nothing to do with the asylum claim; it has to do with the circumstances the individual finds himself in, family circumstances and things like that, and whether removal from Canada would be an undue hardship. And it's, at the end of the day, a discretionary remedy that rests with the minister.
The other remedy is the pre-removal risk assessment, which only kicks in if there is a significant delay in removing a failed refugee claimant; and that only deals with allegations of changed circumstances in the country of origin.
So the claimant never has the chance to re-litigate the matters that were heard by the single member before the refugee division. That case is closed, unless it's overturned by the Federal Court on judicial review.
In the pre-removal risk assessment, they can bring forward, if such evidence exists, evidence of changed circumstances in the country, if there's a coup or if there's a civil war started, or something like that, that would make removal to that country dangerous. But that's a very limited process. So the total bundle of recourse that's available to refugees is not in fact as broad as some of our newspaper editorialists would have us believe.
The big problem in the system is slowness in removing failed claimants, and that's a resource problem for the Department of Immigration. I don't think it's lack of will on their part, particularly during the period when we had 45,000 claimants a year coming and a significant number of these were rejected. The task of having these people removed or going and collecting them and effecting the removal is very difficult, and you find that a very significant percentage of them just never get removed. That is a fundamental problem in the system, but it's not a problem with the recourse.
So I would see the RAD as being a vital element in this system, but I wouldn't see removing the pre-removal risk assessment process or the H and C. And as I mentioned in my earlier comments, access to the Federal Court is a legal remedy that's available because of the status of the refugee board as a statutory tribunal. What I would hope would happen, as a practical matter, is if the quality of decisions at the refugee board, the RAD, were demonstrably high, the incidence of judicial review being granted and the delay that's associated with it would be eliminated.
:
If you'll bear with me one second, I'll go to the.... We developed three scenarios, and that was based on what was the leave rate at the Federal Court and various other things, and we tried to factor in all the different elements.
In fact, I've probably misled the committee. By my calculations--and this is direct national legal aid costs, so that would be shared between the provinces and the federal government--they were estimated at $6.5 million pre-RAD based on the intake levels that existed in 2002.
Under scenario one, which was the most optimistic scenario, that there would be a 50% reduction in the rate at which leave for judicial review was granted because of a high level of deference and that the RAD would correct the decisions that are now remitted back for a rehearing by the refugee division, the total legal aid costs would have been $7.75 million.
Then for scenario two, which was that.... I'm trying to get my thoughts straight on this. It says for 75% of those cases that are currently overturned on judicial review plus one-third of the cases for which leave is currently granted with increased judicial deference at a rate of 25% instead of 50%--with that change, it was going to be $8.5 million.
In scenario three, the RAD would only resolve 50% of the cases currently overturned on judicial review. So there would be a higher incidence of judicial review after the RAD. It would be $9.1 million. That was at a starting case intake of 40,000 instead of 20,000.
I'd have to go back and try to reconstruct how I did these calculations, but they were based on all the different elements that went into the process at the time.
I agree with the principle of this motion. As Mr. Karygiannis just mentioned, in the previous incarnations of the opposition, I remember supporting this sort of effort. I don't ever recall the government of the day agreeing to it at the time, but I'm glad to see that there's a change of heart now that the Liberals are in opposition.
I have a problem with one part of this. I don't have any issue with accountability and transparency in hearing from these people, but I would be more inclined to support hearing witnesses who are IRB judges, Federal Court appointments, or the sorts of appointments that actually affect the outcome of people's cases.
Citizenship judges are more symbolic in nature. Surely they have an important role and confer citizenship, but the process is already finished by the time they give the citizenship to individuals. So I would be inclined to add even Federal Court judges or other appointments that are more significant in the effect of the outcome.
We trusted the process under the previous government, and I trust the process now. But I think it would be a waste of our time, seeing that we have limited resources.
I know Mr. Wilson was talking earlier about the cost to committee, and I think hearing citizenship judges, as opposed to some of the other more significant appointments, would be a waste of our time.
So if there is will for a friendly amendment, I would ask to consider removing the citizenship judges part from this motion. But I'll also even potentially add other appointments that affect the outcome regarding immigrants and refugees. So that's what I would suggest. But I'm willing to support—
I support this motion. It's something the committee should be doing, and we'll be voting for it. I'm also supportive of looking at other appointees, should we have that kind of motion come before us.
I'd like to remind committee members of the first report of this committee that we made in this Parliament, where we were asking the government to development skill- and competence-related criteria for all appointed positions, and we were asking for that kind of information.
I know this hasn't necessarily been accepted by the government at this point, but I'm wondering if the analysts and the clerk can do their best to get any of the information that exists, which we could have before we meet with these folks, should this motion pass, including existing job descriptions for the position.
Also I believe that the minister's office would be able to provide us with the curricula vitae of the appointees. This is information that we should have before the scheduled meeting with these appointees.
I think everybody should have a copy of the motion in front of them. I'm going to read just the “therefore be it resolved”, the main one:
Therefore, be it resolved that the Standing Committee on Citizenship and Immigration calls on the Minister of Citizenship and Immigration to immediately rescind the CIC Interim Policy and recognize legal marriages of gay and lesbian couples performed in jurisdictions outside Canada for purposes of immigration in exactly the same way as the legal marriages of heterosexual couples are recognized.
Mr. Chair, I find it passing strange that we would have a policy that doesn't recognize legally performed marriages in other jurisdictions in other countries, like the Netherlands, Belgium, Spain, South Africa, and the Commonwealth of Massachusetts in the United States, for purposes of immigration, when we in Canada have made that change to our own laws, made that change in terms of legal recognition of gay and lesbian marriages here in Canada, and when just last week we reaffirmed that policy in the House of Commons by the vote we had. So I think it's very important that we call on the government to immediately make this change and to be very clear about that.
I think the clerk distributed the information that appears on the CIC website, and I printed it just this morning. I called that up this morning and printed it off, so you can see exactly what it does say, up to date, hot off the press this morning. If you'll look under the section on the bottom of the first page, sponsoring your same-sex partner as a spouse under the family class, and then it says “CIC's interim policy”, you turn over the page to the second page, and just under the list of various provinces there, you will see this paragraph:
If you were married outside Canada, you cannot apply to sponsor your same-sex partner as a spouse. However, if you are a Canadian citizen or a permanent resident, you may qualify to sponsor your partner as a common-law or a conjugal partner.
Mr. Chair, I think that's clearly discriminatory. It sets up married gay and lesbian partners to go through a different process, to go through a process that's made for people who aren't legally married. It's made for people in common law relationships or conjugal relationships, and I think that's clearly inappropriate. We need to have exactly the same policy for legally married spouses, whether they're heterosexual or gay or lesbian, and we need to have that kind of policy as soon as possible.
And Chair, I have just one editorial change to the “whereas” clause, the second “whereas” clause. It probably should say “Commonwealth of Massachusetts”, not “State of Massachusetts”, to be absolutely correct. If we could make that as a friendly change, I'd appreciate it.
Thank you, Mr. Chair.
:
Let me finish. I want to say this for the record. I think there's no question that gay and lesbian couples should be treated absolutely no differently from heterosexual couples when it comes to immigration matters, and that in the end there should not be any discrimination. Any policies in violation of that would need to be brought up to line and should reflect that. So I think, in principle, we agree that those marriages should not be treated any differently in any respect.
Having said that, there is no question that the department would need to instruct people in the field regarding the policy. They would have to rework that and it would take some time. I should also say that we're accepting all the “whereas” clauses in terms of the various countries that recognize marriages, but we haven't had anybody from the department come before us and indicate what the policy is, what need there is for change, and how it might be changed to reflect it.
Let me raise something for Mr. Siksay. For instance, the way the motion now reads, you would “recognize legal marriages of gay and lesbian couples performed in jurisdictions outside Canada for purposes of immigration in exactly the same way as the legal marriages of heterosexual couples are recognized”--and, I would like to say, provided they are also legally recognizable in Canada, because some jurisdictions recognize marriages that are not recognized in Canada, whether they be polygamous relationships or inter-family relationships.
I think we ought to hear about the issues and determine whether there is a better motion that can be put forward, provided the principle is that heterosexual couples and gay and lesbian couples, or same-sex couples, should not be treated any differently in any respect. We need to come up with a policy that actually makes some sense, and there's no rush on it.
I think we can reaffirm in principle that that's so. I would perhaps ask that this motion be tabled until we get back, and that there be some movement on the department's part and on the minister's part to come back with a proper policy for this committee to consider for approval, as opposed to just passing the motion as it now is. If we're intending to do that, if we want to deal with it today, I would move a friendly amendment to this one. But I would first ask that we just delay this to get the minister and the department to come back to us as to what they have done with respect to ensuring that principle is respected, that the heterosexual and the same-sex marriages are treated the same.
The other thing I might say is there are some cases in process and some cases perhaps in appeal that the department would have to review in light of whatever decision we make, and it would take some time.
So I'm saying that in principle, I don't think you'll find any argument from this side of the table with what you're saying, but let's be rationale and logical about it and give it some time to happen, because there are cases in process. There are cases probably in some areas of litigation--I don't know that. But at least the department should appear before us and respond or come back with the principle that's acceptable.
Thank you.