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Good afternoon, ladies and gentlemen.
This is the Standing Committee on Citizenship and Immigration, meeting number 17, on Tuesday, May 25, 2010. The orders of the day are pursuant to the order of reference of Thursday, April 29, 2010, .
We have three witnesses today, three guests. One of them is coming via teleconference from St. John's, and we're having problems hooking that up, but there's no reason we can't start with the other witnesses and hope that it will happen. So I will introduce our witnesses.
I want to welcome you to the immigration committee to study this bill and hear your observations and comments. We have the Table de concertation des organismes au service des personnes réfugiées et immigrantes, with Stephan Reichhold, who is the director, and Richard Goldman, who is the committee coordinator to aid refugees. As well, we have Action Réfugiés Montréal, Glynis Williams, who is the director, and Maude Côté, who is the program coordinator.
Each group has up to seven minutes to make a presentation. Thank you for coming.
We'll start with you, Mr. Reichhold.
Mr. Chairman, honourable members, thank you for this opportunity to appear before your committee. My name is Richard Goldman. As Stephan mentioned, I'm the refugee protection coordinator for the Table de concertation. I'm also the coordinator for the Committee to Aid Refugees, a small church-funded, non-governmental organization that assists refugee claimants. On a personal level, I've worked with the refugee determination system in various forms since before the creation of the IRB in 1989.
For the purposes of our presentation, we feel that a real-world example always gives the clearest picture of the real-world impact of a law. So we're going to present a real case that is currently running its course. We'll change the name, of course. This case was the subject of an opinion article that Paula Kline of our sister organization, the Montreal City Mission, and I wrote.
I gave it in. I don't know if it has been distributed and translated. It has? That's great.
We believe it illustrates the real-world impact mainly of the question of the humanitarian applications, but also of the short timelines.
Just briefly, the story goes like this. It's the story of Brihan. That's not her real name. It means “light” in her native Amharic. She was given into marriage at age 12 by her parents. She was the eldest of nine children. She was born in a village in northern Ethiopia. She never got to go to school. On the day after her 14th birthday, she gave birth to her first child, a boy. In the next five years she had another son and two daughters.
In 1998, the Ethiopian-Eritrean war broke out. Her husband was called to fight in the war and is presumed to have died in combat. Meanwhile, the Ethiopian authorities began picking up and expelling people of Eritrean origin. Brihan's mother, who is Eritrean, was expelled to Eritrea. Brihan was arrested herself and held for a week in a tiny cell with more than 40 other detainees. She was beaten, tortured, and brutally raped. Aside from the emotional scars, she was left with a serious medical condition.
After that horrific week in prison, she was released and fled to Sudan, where she worked at odd jobs for five years. She was always afraid of being deported to Ethiopia. Of course, she had to leave her four children behind. Finally, in 2004, one of her friends arranged for her to get on a plane and make it to Canada.
She arrived in Montreal with no identity documents and no knowledge of English or French. She was actually illiterate, even in her native tongue. Because she had no identity documents, she was held in immigration detention for three months, which actually had the effect of speeding up her refugee hearing. I'm sure you've heard that many people wait two years or more for their refugee hearing, but because she was in detention, it was sped up a great deal.
As she had had little access to her legal aid lawyer or to interpreters and she had had little time to properly prepare for her case, her refugee claim was refused. However, with the assistance of the Committee to Aid Refugees and the Montreal City Mission, she subsequently presented an application for permanent residence on humanitarian grounds, showing evidence of the medical condition contracted during her assault. This evidence had not been available at the time of her refugee hearing. With that evidence, and also in light of other compelling humanitarian considerations, like the best interests of her children, notably her two daughters, who faced the same risk she had of being given into forced marriage at a young age, the humanitarian application was accepted. If all goes well, she should be reunited with her children very shortly.
As I mentioned, this is a real case, and as a matter of fact, we got the wonderful news last week that the visas for her four children were issued by Nairobi, and therefore her four children should be coming literally in days from now, if all goes well. They will be reunited with their mother after a ten-year separation.
Meanwhile, Brihan has done a very good job of integrating. She has learned to read and write in both of Canada's official languages, and she has already gained some Canadian work experience. If the proposed reforms were in place as they are currently presented under C-11, she would not have been able to file this agency application. She would have been deported to Ethiopia within 12 months, possibly to her detention and death, leaving her children as orphans.
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I would like to thank you for giving us the opportunity to present our concerns on this bill, and particularly to thank Mr. St-Cyr who sent our request to appear to the committee.
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Action Réfugiés was founded in 1994 by the Anglican and Presbyterian churches in Montreal. Our mandate since then has been to assist refugee claimants who are being detained in the Canada Border Services Agency detention centre in Laval. We also match women refugee claimants with volunteers at the beginning of their time in Montreal. And our third program is sponsoring refugees from overseas.
We believe that one of our strengths is that we work with both inland refugee claimants and refugees who are overseas. This is a somewhat unique situation in Canada.
Twenty-two years ago, I started working with refugee claimants who were being detained. As the founding director of this organization, we chose to make the detention program a priority, which you'll hear more about soon.
In 2007, I participated in a very short-term deployment program with the United Nations High Commissioner for Refugees in Syria, interviewing Iraqi refugees. Having listened to the stories of more than 350 Iraqi refugees in four months, I really don't have words to describe the enormous suffering and violence that was unleashed in Iraq. Therefore, we welcomed the minister's announcement of the increase in overall resettlement numbers, which I know is not part of this bill. However, it is extremely unfair to make the increased numbers conditional on the passing of this bill. Suggesting that one group merits Canada's protection while the other group is bogus—in other words, pitting inland claimants against refugees overseas—is a strategy unworthy of Canada's humanitarian tradition.
I want to give you a real-life example. A young Iraqi man whom we met—I will call him Yousuf—was kidnapped in Baghdad. A large ransom was demanded and paid by his father. Yousuf had been tortured, and his family sent him to Syria upon his release, but even there he did not feel safe from his captors. Then Yousuf's father was kidnapped and a ransom of $200,000 was demanded; it was paid, and his body was returned. He was killed by the terrorists.
That man's brother is a Canadian citizen, who was deeply disturbed by his own brother's violent death and by the trauma of his nephew, Yousuf. So he assisted Yousuf to travel to Canada. Action Réfugiés met him while he was detained in the Canada Border Services Agency detention centre, having claimed refugee status right at the airport. Yousuf would unquestionably have fallen under the UNHCR referral categories, but was terrified to stay in the region, so he came to Canada. His story illustrates why we must not even imply that refugee claimants are less deserving than those who are refugees overseas.
The designated safe countries of origin emphasizes this idea that some refugees are more deserving than others. The provision is discriminatory and fails to recognize that most countries can be unsafe for some of its citizens at some point—gender claims and victims of sexual orientation are obvious examples.
The fact that refused claims from countries designated as safe will be denied access to the refugee appeal is really worrisome. Refugee claims are by definition based on individual risks of persecution, so safe country designation is a contradictory principle. It seems likely that designating countries as safe will result in increased requests for judicial review for claimants of these countries should they be denied. The Federal Court is likely to grant the review for people who have at least had an appeal at the RAD.
We understand concerns regarding demonstrably weak refugee claims, so why not allow the CBSA to designate a certain number of claims for priority processing at the IRB? This fits much better with the principle of refugee status determination, which is an individualized status.
[Translation]
I will now give the floor to my colleague, Maude Côté.
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Thank you. I am the Program Coordinator for Action Réfugiés Montréal. As Ms. Williams mentioned, our organization visits the Immigration Detention Centre every week in order to provide legal information and moral support to the detainees. The centre is one of three immigration detention centres in Canada.
Although some people may be held in custody before facing a removal, one reality that is little-known and is part of our daily experience is that of asylum seekers who are detained on grounds of identity following their arrival. We believe it is critical not to confuse the cases of people in detention because of an imminent removal and those who are there on the grounds of identification, following their claim for refugee status.
We believe that the wait time for an interview during the first week after the claimant's arrival, as well as the holding of a hearing within 60 days, are totally unrealistic for asylum seekers who are detained. We are extremely concerned by the fact that these new proposed measures would be very harmful to them, both because of their right to seek the advice of a lawyer in order to help them to prepare their file, and because of the very great difficulty in obtaining documents or in being able to move their file forward as they are being detained by the authorities.
For example, a Congolese asylum seeker, who is fleeing the conflict and is unable to contact his or her family, because he has lost track of them for these very reasons, can be held in detention for several months, traumatized and unable to provide the identification requested. This situation is unfortunately the reality for several people.
We are also concerned by the fact that an official, during the weekly interview, would “help the claimant fill in the forms properly”. This role actually belongs to an independent lawyer acting as counsel on behalf of the claimant in order to protect his or her rights. This right to counsel is provided under section 7 of the Canadian Charter of Rights and Freedoms and should in no way be cut off, particularly in legislation that must protect such vulnerable people.
Since the detention facility conditions do not make the collection of documents easy—detainees must obtain calling cards, have no access to the Internet, the detention centre is far from the city—it is risky to force the holding of hearings too quickly, because this is to the disadvantage of claimants, who will not be ready in time. Moreover, as the refugee appeal section will be limited—both in its form and in its substance—we risk seeing a higher number of applications piling up in this appeal section, with people rejected in their initial appeal and ultimately rejected because of the restriction of presenting only new evidence subsequently. This would seriously affect Canada's reputation as far as the protection of refugees is concerned.
Moreover, because the proposed timeframes are so short, we believe that detention will be favoured, because of the accelerated process that Minister Kenney wishes to have, in order to keep better control of the situation. Because the effects of detention on asylum seekers fleeing persecution—who for the most part have never being detained in the past—are significant, we are concerned about the consequences of an increase in the detention of people seeking refugee protection in Canada.
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In conclusion, we would like to present the five following recommendations: first, we recommend deleting subsection 100(4) concerning the interviews within a week of the person's arrival in Canada.
Second, we recommend allowing the IRB Refugee Protection Division to set the date of the hearing in consultation with the claimants and their counsel, according to the availability of the documentary evidence and their level of preparation, without obliging them to appear at a hearing within 60 days of the interview.
Third, we recommend amending subsections 110(3) to 110(6) and paragraph 113(a) so that the Refugee Protection Division would systematically hold hearings, while taking into consideration all evidence related to the claim for protection.
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The fourth recommendation is to delete clause 12 proposing a new section 109.1 of the Immigration and Refugee Protection Act for the designation of safe countries of origin.
The last recommendation is to address manifestly unfounded claims by amending the act to give authority to the Minister of Public Safety to identify a limited number of claims that the IRB would be required to hear on a priority basis.
Thank you.
Thank you for the introduction. My name is Julia Porter and I am the settlement social worker with the Association for New Canadians. We're an organization that's community-based, not-for-profit, based out of St. John's, Newfoundland. We offer resettlement assistance programs and immigrant and settlement assistance programs to newcomers in St. John's, Newfoundland. We primarily work with government-assisted refugees and immigrants. We don't often work with refugee claimants.
One of the main things I wanted to speak about with respect to the bill, concerning my own experience, is around the strict timelines. Going from 60 days to 19 months seems like quite a large leap. Working with the clients that I work with, who may come from rural areas or who may have family members scattered over different parts of the world, it's really very difficult to get certain documents or everything in order that they may require. So 60 days before the time of the hearing is pretty strict. As well, for the eight days it would be really important that some practices or approaches be put in place, given the sensitive nature of many claims, and maybe even developing partnerships in the community with respect to having certain lawyers who may have to work with the refugee claimants.
I do think it's fantastic that they are planning on resettling more refugees under the private sponsorship program as well as the government-assisted refugee program, but as some other people have mentioned, it's too bad the refugee claimant process is affected by that.
That's everything I have to say from our perspective. As I said, we work primarily with government-assisted refugees, and I'm very glad I got the opportunity to sit here at this meeting.
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I thank everybody here, and to you joining us from St. John's. It's wonderful of you to give us an opportunity to hear what you have to say.
I think the contentious items...there are a few points. There is the eight days, the sixty days, and not being able to go before an agency and use the same information you have submitted at the refugee hearing.
I was wondering if you could give us your view on the eight days. Is that long enough? Right now, if I'm not mistaken, it's supposed to be twenty-eight days. Is there a time at which you think the first hearing should take place? Should it be eight days? Should the people have only an interview? Should they have the right to submit a PIF?
I understand that in St. John's you were saying we should have legal counsel on standby in order to give them advice. Can you give us your feelings on the eight days and sixty days, as well as the agency not being able to use the stuff that you submitted to the refugee hearing?
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The New Democrats, and I believe the Bloc, have said from the outset that we do not support the safe countries designation. We believe all refugees should be treated equally. No matter which country they come from, they must be examined as individuals.
At this point, the Liberal Party has not said they would or would not support the safe countries designation. Some MPs have said they would; others have said they wouldn't. The critic seems to have said he has no trouble with it, but I don't want to speak on their behalf. That's why I want to focus on this. There had been discussion on the eight days, etc., but I think the safe countries one is really...given that about 10% of the refugee claimants come from so-called “safe countries”, given the experience in other countries that we've seen...
So perhaps starting with Ms. Côté, how are you trying to explain to some of the members of Parliament, whether they're Liberals or Conservatives, why this safe countries designation is a serious problem? I would like to invite each of the witnesses to comment on this. And perhaps you could also comment on how you are notifying the people you serve, whether it's your organization or your members, that this element is not acceptable as part of this package.
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For those who have worked in immigration for a very long time—and it's a very long time—we once had a credible basis, a
minimum de fondement. The idea at the time seemed to be almost identical to what we're doing, what is being proposed in the law right now.
Designating safe countries is an effort or an attempt to minimize, to reduce, the number of claims. That seems to be one of the driving forces for this new legislation. But it really is at odds with individual status determination. The whole convention relating to the status of refugees is that an individual needs to prove why they have been persecuted or had a threat to their life, and we're taking that away when we designate entire countries. As we mentioned before—you could even possibly suggest the case that Richard presented earlier—gender cases, cases of sexual orientation... You may be from a country that has minimum human rights standards. But there are always people who will be targeted.
Look at what Malawi is doing in cases of sexual orientation, Zimbabwe, others, etc., in Africa. It will be a nightmare, I think, to designate those countries. And it doesn't need to be. It really is a contradiction in the law. But at the same time, we understand—I think most people are quite realistic—that there are some concerns about claims that are weaker, as we describe them, that do not seem to have the same level.... Why not prioritize those claims? The process of accelerating, of giving a chance for them to be heard, for a decision to be rendered and to go to appeal--we hope--if that is the intention of individuals, then why not do that?
What do we do with our own client group? We're a responsible organization. We meet people in detention. We have no agents working overseas helping people or identifying what to say or when to say it. I think it's going to be very hard for people to understand that there are two different streams here--one, if you come from one country or several countries, or, two, from others--and to know how to prepare. Again, it always comes back to documentation. And some of them—
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Yes, it is definitely vulnerable to abuse. We agree totally. We're not starting from the Garden of Eden here. The system does have problems, and they need to be addressed.
One of them, as the government has pointed out, is the extremely long wait for refugee claims. The longer a person waits, the more injustice there is to genuine refugees, but the more of a pull factor there is for fraudulent refugee claimants. That absolutely has to be addressed.
There are certain things about the nomination procedures for members of the board. There have been great improvements over the years, but it's still not a completely depoliticized system. We believe that it should be based entirely on merit and that the nominations should be by the Immigration and Refugee Board itself, based entirely on merit. That's maybe getting off the abuse question.
There are improvements that need to be made, but it is inherently a very strong system and a model for countries around the world. We believe it's a very sound concept to have the first-level decision made by a professional independent tribunal; if you get the best possible decision the first time out, then you have the least worries about correcting errors and the least chance of having people abuse the system.
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You agree with him? Good.
The same section, in paragraph 25(1.2)(c), mentions the ban on a request on humanitarian grounds in the 12 months that follow, including cases where the claim was abandoned before the hearing was even held.
Do you not believe that we should, rather, allow people who abandon a claim before the hearing has been held to make a claim on humanitarian grounds, if only for reasons of efficiency? In that way, people who realize they have made a mistake would not be blocked in the refugee claim process, when they should have invoked humanitarian grounds.
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As it now stands, several provisions authorize the minister to regulate claimants' representatives and when a claimant can be represented during his application process.
However, there is nothing specific—in my view—which says that at any time in the process, a person can be represented by a lawyer, perhaps, at the very least accompanied and advised by a lawyer. I have not seen this in the act.
Do you share this concern? Do you think we should, to very clear, state in the act that, at any time, at any stage, a lawyer can accompany a claimant and provide advice?
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We have, by video conference, Mr. David Matas, who is a lawyer.
We have a representative from the Canadian Centre for Victims of Torture, Ezat Mossallanejad, who is a policy analyst and researcher.
Finally, we have by video conference from London, Mr. William Bauer, who is a former Canadian ambassador and a member of the Immigration and Refugee Board of Canada.
We're going to start, and we'll give you each up to seven minutes.
We'll start with Mr. Norquay, who is in the committee room with us.
Mr. Norquay, you may proceed.
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I'm sorry. Thank you for that helpful hint.
The HIV and AIDS Legal Clinic Ontario is a non-profit legal aid clinic that has provided legal services to people who are living with HIV/AIDS in Ontario since 1995. Of the 4,000 requests for our services we receive on an annual basis, a significant proportion are in the immigration and refugee law area, and we have provided legal assistance over the years to hundreds of HIV-positive individuals seeking refuge in Canada.
Just to give a bit of context before I move into remarks on the bill, the situation of HIV-positive Canadians has improved dramatically over the past 20 years. With the advent of effective anti-retroviral treatment, many Canadians now enjoy a close to average life expectancy.
Unfortunately, in many parts of the developing world, HIV remains effectively a death sentence. The problems range from a vastly reduced lifespan due to a lack of HIV medications to the interference that general civil strife and economic instability pose to the delivery of health care services, and of course to a public hostile to HIV-positive persons in a way that would be difficult for any of us to fully comprehend. I am speaking about outright rejection by family and friends, expulsion from communities for fear of disease, and near impossibility of finding employment or housing.
The situation faced by HIV-positive asylum seekers and others without status in Canada highlights the very reason why H and C relief has historically been available and remains critical today. The idea behind H and C relief is to provide discretionary relief in cases not anticipated by the immigration legislation; that is to say, for those people who fall through the cracks.
One oft-cited tribunal case from 1970, Chirwa, characterizes H and C relief as applying in those cases that would induce a reasonable person in a civilized community a desire to relieve the misfortunes of another. It's an analysis that entails looking at an individual as the whole of their parts, in all of their circumstances.
Of course, H and C relief is discretionary and the onus is on the applicant to prove his or her case. There are no hard and fast rules about which cases ought to be accepted. The department's guidelines on H and C applications speak only of undue, undeserved, or disproportionate hardship.
Over the past 15 years, countless of my clinic's clients living with HIV who face extreme hardship in their countries of origin have been accepted on H and C grounds. This goes equally for failed refugee claimants and for those who've never made refugee claims.
If Bill C-11 is accepted in its current form without amendment, most if not all of those successful H and C applications would have been impossible to make in the first place, or, if made, would not have been accepted. The result would be deportations of individuals and families with HIV--who may be leading healthy and productive lives in Canada--to situations abroad where their lives are in danger due to impoverished health care systems, or to lives of misery generally because of serious restrictions on basic human rights.
The two sections of concern are, first, the proposed subsection 25(1.2), which bars H and C applications from refugee claimants during their claim or for one year following a refused claim. The other section is proposed subsection 25(1.3), which prevents all H and C applicants from raising arguments related to personalized risk.
On the issue of the one-year bar, it is very common for HIV-positive claimants to make an H and C application immediately after their refugee claim is denied when there is inadequate health care for HIV in their country. The Immigration and Refugee Board is not able to consider a risk to life owing to inadequate health care because it's excluded explicitly in IRPA under subparagraph 97(1 )(b)(iv).
The IRB is simply not able to accept these claimants where their life is at risk owing to their HIV status. An H and C officer can and--in practically all circumstances that I have experienced--does accept those cases. The one-year bar on H and Cs will make these applications impossible.
To make matters worse, most asylum seekers are not aware of their HIV status until they report for the medical examination required of refugee claimants. By then it's too late to choose to file an H and C application in lieu of a refugee claim, because even those who withdrew their refugee claims would face the one-year bar.
We believe the one-year bar would also result in driving refused claimants who have a strong H and C case underground. After all, if an individual knows they have a strong H and C case and the harm they face in their country is substantial, it's natural that this person would do everything in their power to evade enforcement and stay in Canada, hoping that after the one year has passed they might be able to file an H and C application that could be considered. This of course would lead to increased enforcement expenses and costly litigation.
As has been stated by witnesses who have appeared before the committee, the fact of filing an agency application does not result in any kind of hold on removal proceedings. Many witnesses have questioned the need for the one-year bar, or the bar on simultaneous agency applications, and I echo those comments.
Bill C-11 is entitled the Balanced Refugee Reform Act. It supposedly balances improved protection for refugees with enhanced prevention of abuse.
For the bill to realize its aim of balance, five requirements must be met: one, there must be a need to improve protection for refugees; two, the bill must be effective in improving that protection; three, there must be a need to enhance prevention of abuse; four, the bill must be effective to enhance that prevention; and five, improved protection for refugees and enhanced prevention of abuse must be roughly equivalent, balancing each other out.
Does the bill meet these five requirements? It certainly meets the first. There is indeed a need to improve protection for refugees, because now there's no appeal system and there needs to be one.
Does the bill remedy that defect? The answer is, only partially. The bill does allow for the appeal division of the board to come into effect, but there are three problems. One is that not every refused claimant can appeal; those from designated countries cannot. Secondly, even for claimants not from designated countries, there is a two-year lag potential in the proclamation of the provisions about the appeal. Thirdly, the system weakens protections in other areas by the partial elimination of recourse to humanitarian applications, temporary residence permits, and pre-removal risk assessment.
As to the third question, is there abuse of the system that needs addressing? In my view, the system is too long. There are delays, and whether those delays are the result of abuse or not, we needn't determine, because long delays are in the interest of no one, genuine refugees as well as the system itself, of course.
Is the bill effective in removing delays? In principle, there are two causes for delays. One is fragmentation of the system. Each step takes time. If there are too many steps, that means too much time. If there are unnecessary steps, time is wasted. The present bill does not address this cause of delay. Right now, the system has two unnecessary steps—eligibility determination and pre-removal risk assessment—but they still remain. That is not to say that eligibility and pre-removal risk assessment are irrelevant, but it's important to distinguish between steps and standards. Not every different standard needs a different step. Eligibility determinations could be made by the board as matters of exclusion or jurisdiction. Pre-removal risk assessment could also be made by the board on a reopening application.
What the bill does, actually, is introduce a new step, these interviews, which are going to generate more time to the system. We've heard discussions about eight days and 60 days—eight days for the interviews and 60 days for the hearings of the board after the interviews—but this discussion has an air of unreality about it. First of all, neither the government nor the minister decides these times; only the chair of the board does, as a matter of the rules. Secondly, the fact of the matter is that the times can only be realized if they're workable. Having an interview eight days after the matter gets to the offices of the board is not workable either for the claimant or for the board. Indeed we've had a history of legislated times in the system that simply do not get realized because they are unworkable.
Take, for instance, the three-day rule, which says there must be eligibility determination within three days of a claim. The fact of the matter is that the three-day rule is almost never respected for inland claims, and the way it's respected in form is that the three-day clock starts ticking from when the officers are able to meet the three days. That is the practicality of what will happen with the interview.
Unless we have new resources, resources will have to be diverted from existing tasks to complete the interview task. How much the new step will add to the overall time of the process is speculative, but it's likely to be substantial.
One step that does not cause delays, but which the authors of the bill seem to think does, is an application for permanent residence on humanitarian grounds or a temporary residence permit, as a result of which there's a restriction on applications for these procedures that in fact does nothing to shorten removal because removal is possible now pending these procedures.
The other cause of delay besides unnecessary steps is backlogs. If the system gets overwhelmed, there is queuing. The backlog problem is not necessarily an abuse problem; it's a matter of claimants relative to capacity.
There are two explanations for the current backlog. One is the change in the appointments process from the old government to the new government and nobody being appointed for a couple of years until the appointment system was changed, and that generated a long backlog. We're now back at full complement, but that backlog is still there. The other is the claims from the Czech Republic and Mexico before visas were implemented. But now the visas are there, so those delays will eventually disappear.
The bill authors seem to be of the view that by speeding up the system they can lift visas from the Czech Republic and Mexico and perhaps other countries. In my view, that is unrealistic. Any time that is so short as to deter people from coming from non-visa countries, there is going to be a claims system that will not be effective to protect real refugees.
The bill fails on the test of balance on its own terms because of the staging of implementation: the enforcement measures, the decrease in access to humanitarian temporary resident permit applications comes into force immediately, and the appeal division of the Immigration and Refugee Board comes into force potentially two years later.
But the problems are more acute than that. Because we have a weakening of protection, a denial of access to a number of procedures that are now available, we have in balance a system where we've moved one step forward with the appeal division of the Immigration and Refugee Board and two steps backward. The net result is—
I speak on behalf of a front-line agency helping survivors of torture, war, genocide, and crimes against humanity. I also speak as a front-line worker at the centre and as a former refugee who has gone through the process.
For 33 years the Canadian Centre for Victims of Torture has served more than 16,000 survivors from 130 countries. I am going to share with you some of our concerns.
Our first concern is about the provision of the interview at eight days. Based on our experience, 50% of refugee claimants who come to Canada have experienced war or torture. When they come here, they are highly traumatized. Most of the time, upon their arrival they are unable to disclose everything they have endured. This is especially true for survivors of rape and other types of gender-related torture.
Second, we submit that the provision of 60 days is neither fair nor feasible. Torture victims often require medical or psychological assessment about torture. Medical assessment sometimes take us two months because they need X-rays, MRIs, and so many things. Also, it sometimes takes me two months to get an appointment from a psychologist or a psychiatrist to assess the torture of a person who has come from a tyrannical regime. It is not at all feasible. How can we expect them to submit everything?
Also, survivors of torture and other international crimes develop a sense of withdrawal in regard to sharing their fearful experiences. This is true specifically about other types of gender-related persecution. Right now, we have the pre-removal risk assessment. We have H and C. We have some kinds of remedies for them, but I strongly believe that we should continue with H and C. Because if you deny them H and C for one year, it is no longer humanitarian; it is no longer H and C.
Also, there is the issue of the problem of safe countries, because we have certain survivors--from any country--who go through torture due to their sexual orientation. It is sometimes due to gender persecution and some types of harassment. I don't think we should just say that they have come from a safe country and they are being denied access to the refugee determination system.
Also, another issue of concern is the future of the Immigration and Refugee Board. Right now, we have a quasi-judicial system. On the question of civil servants, we don't know what will happen under the new bill. Experience from other countries has shown that some of these civil servants are not competent. They don't know, and they go with bureaucratic considerations.
Another issue is the principle of non-refoulement to torture. Under article 3 of the convention against torture, article 7 of the Canadian Charter of Rights and Freedoms, and article 12 of the charter, we cannot send anybody back to torture to any country. That is also based on the ruling of the Supreme Court of Canada in the year 2002 in the Suresh case.
I'm afraid that implementation of would lead to keeping new people in limbo, because definitely legislation like that cannot overrule Canadian international obligations as rendered in conventions against torture or Canadian constitutional provisions. What will happen if they have hundreds of rejections? Will we keep them in limbo? We cannot remove them. Limbo is also a technique of torture, and there are many tyrannical governments. It has also already led to the re-traumatization of our clients. I submit that the issue of refoulement to torture would also traumatize our present clients. They feel that Canada is not taking care of this important issue, and it might lead to re-traumatization.
I submit that this Bill , if it becomes law, would impose new costs to the Canadian taxpayers for enforcement, removal, and detention, all those things.
Finally, I submit that since 1976, the Immigration Act has gone through amendments 52 times and it has not improved the system.
There is one main defect that I want to bring to your attention as respected legislators. It's the issue of linking victims' immigration and human rights and the issue of the need for an ombudsperson responsible to Parliament to hear grievances about the implementation of refugee acts.
Thank you very much.
I don't have enough time, really, to deal with all aspects of Bill , so I'll try to concentrate on the aspects that have produced the most attention.
The designated safe country of origin is one of the more controversial aspects. It's been systematically attacked by I think every lobby group that's appeared before you, and indeed it is an extremely sensitive subject for some people.
Most of the EU countries utilize some form of this, which is simply an attempt to avoid clogging the whole system with manifestly unfounded or frivolous claims. The criteria for designating safe countries of origin set out by the EU council are very precise, and although those applied by individual countries may vary in detail and procedures, the fundamental criteria must be met.
There are many sources for determining SCOs, but I would mention two that are used all the time. The United States Department of State human rights reports are issued every year on every country in the world, including Canada. They are generally considered quite unbiased and objective, and they have been used for many years by the IRB and by counsel. The British Home Office also maintains a country of origin information service.
I don't think our government, in its proposal, is planning to have a very long list, but I agree very strongly that they should have a procedure for establishing the list, if indeed that's the way they go, that would produce a list that's accurate and objective.
One criticism that I've heard is that a system would be discriminatory and that each claim must be individually assessed. Even now, the IRB is using discriminatory procedures in its national streamlining directions, which allow for determination of claims from about 20 different countries without a hearing at all, with just a simple interview. I've heard no complaint from any organization about this, probably because it almost automatically produces a positive decision.
The original legislation also provided for a list of safe third countries, which envisaged rejection of claimants who on the way to Canada pass through a country that had a respectable refugee determination system, human rights, and all that. The theory was that anybody fleeing persecution would apply for asylum at the first place they arrived at, rather than shopping around for something they liked a little better. This received quite a bit of pressure, similar to what the SCO is being subjected to now, and in the end, it has never been promulgated, and I presume it never will be. There's never the political will to put this through.
On the question of timelines, we've talked about the refugee claimant talking to a civil servant for about half an hour within eight days of arrival. I don't see anything wrong with this, and the criticism strikes me as being very disingenuous. As it stands currently, he meets an immigration officer and has a port-of-entry interview, which is held under the worst conditions, when everybody's tired, when the noise is about, and with practically no satisfactory description of what was actually said. The eight-day period would enable a claimant to describe the case more thoroughly in a much better environment and then be set for a hearing of his claim in 60 days. I doubt if the 60-day target will be met, but it's a desirable objective, and it certainly provides adequate time for preparation.
Regarding the staffing of the IRB, I'm all in favour of staffing it with public servants. I've heard public servants criticized by many lobbying groups as being incapable of exercising independent judgment, as being anti-immigration, and as being generally inferior to almost any other pool of talent among the Canadian population. The criticism has arisen again during the discussion of Bill , and I find all this criticism shoddy, offensive, and inaccurate.
I've worked with immigration officers for 40 years in various countries of the world, and I found them well trained, sympathetic, and fair, sometimes in the most difficult conditions you could imagine. They carried out the law of Canada; they didn't carry out ministers' wishes. I think that should be understood. That's what we're all trying to do—carry out Canadian law as passed by Parliament.
The worst bias and interference I ever encountered was from an order in council appointee to the IRB who had a very strong bias against any negative decisions. I've always argued against patronage in the IRB, and I've watched the attempts in the past few years to eliminate it or at least dilute it, and I have some hope that these attempts will be fruitful.
On the appeal division, the original reason for putting it forward was to compensate—
I produced an eight-page paper for the committee last October when you discussed the private member's bill. The reasons I think it's ill-advised and not going to advance anything are all in that paper. The original submission has probably been made available to you.
I think the RAD would not only perform no useful function but would reduce the effectiveness and the fairness of the existing system.
I'll leave it at that, but I would like to say that there hasn't been much indication, from my reading of testimony and the number of letters that have been put out to be mailed to MPs and so on, of any willingness to compromise on this bill among large groups of people. If 80% of the Canadian public thinks the system is failing and is inadequate, I think some way must be found to hear it from the 80%, rather than from the few professional organizations whose job it is to lobby.
I'd be glad to answer questions about any of the things I've said or anything else, at your leisure, Mr. Chair.
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In any case, it is my turn. I will change the subject, but it will not make much of a difference.
I will take advantage of the fact that we have two lawyers with us. I have a more technical question about the bill and its interpretation, and it deals specifically with the right to counsel, for a claimant, at every stage in the refugee claim process.
At section 8 of the bill, section 91 of the act would be amended to give the minister the power to make regulations governing who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the minister, an officer or the board. The bill states: “...including an interview before an official referred to in subsection 100(4.1)”. In other words, it says specifically that the minister will have the power to determine which claimant has a right to be represented or advised by a lawyer during the interview.
Further in the bill, at section 23, subsection 167(1) of the act would be amended to read: “A person who is the subject of Board proceedings and the minister may, at their own expense, be represented by legal or other counsel.” I am concerned that this provision does not indicate that this also applies to the interview with the officials referred to in subsection 100(4).
That is the technical aspect. My conclusion is that this provision appears to be vague. So, during the interview, does the bill guarantee that a claimant can be represented by a lawyer, or will that depend on the minister's authorization by way of regulation? My question is for both lawyers, but the other witnesses can also respond if they wish. Do you interpret this provision the same way I do, or am I mistaken? If you support my view, does that concern you? If so, should the bill not specifically say that a lawyer can advise a claimant at every stage, including during the interview?
I like your clarification. I understand better now.
Further, in section 167(1), it says: “A person who is the subject of Board proceedings and the minister may, at their own expense, be represented by legal or other counsel.”
Regarding “who is the subject of Board proceedings”, in your opinion, does that include the official who will conduct the interview, within the meaning of the act, or is this limited to the hearing per se in the hearing room?
Unfortunately, in the first decade of the 21st century, the threshold of torture has gone up. No country is immune to torture, including advanced industrial countries; therefore, anybody could be subjected to torture. I think there is no safe country in the world.
We have a problem with the designation of the United States of America as a safe country. Many people come and then they are sent back. The refugee determination system is different in the U.S. and in Canada. The rate of acceptance is much lower in the U.S. Also, there is no quasi-judicial body like the IRB.
One example I have is that there were claimants from St. Vincent. St. Vincent is a very democratic country, with a parliamentary system, but it is not at all democratic for gays and lesbians. I have plenty of clients coming from St. Vincent. They have been subjected to torture by the community, by their family, by religious people, and with no protection whatsoever from the police. I think they need protection in Canada. For the first time in the history of the Canadian Centre for Victims of Torture, I have accepted clients who claim torture against some democratic countries, unbelievably.
And then, unfortunately, torture—
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I want to thank you gentlemen in Toronto, London, and Ottawa for coming today and giving your views on this bill to us. I thank you very much. That concludes our time with you. Thanks for coming.
A witness: Thank you for inviting us.
A witness: Thank you.
The Chair: We have two more things to do, committee members, before we adjourn. I'll keep talking in public until someone tells me to go in camera, because I don't think it will take long.
You have before you two budgets. The larger amount is the expenses for the video conferencing for Bill , and that's estimated to the end. The smaller amount is the expenses with respect to the Haiti issue.
Everybody's looking at me as though you don't know what I'm talking about. Do you understand?
I'd like a motion to approve these budgets and authorize that the amounts be paid. Ms. Chow and Mr. Karygiannis.
(Motion agreed to [See Minutes of Proceedings])