This is the Standing Committee on Citizenship and Immigration, meeting number 40, on Monday, May 7, 2012. The orders of the day, pursuant to the order of reference of Monday, April 23, 2012, are Bill , An Act to amend the Immigration and Refugee Protection Act and other acts. This meeting is televised.
We have our first panel with us today; it has two members. We have Professor Catherine Dauvergne. She is the Canada research chair in migration law at the University of British Columbia Faculty of Law.
I understand you have a PowerPoint presentation, which we'll be watching.
Professor Sharryn Aiken, good morning to you. She is from the Faculty of Law at Queen's University. I went there, but I think it was so long ago my picture is down in the basement.
It's a pleasure to have both of you here. You each have ten minutes to make an introductory statement, and then there'll be questions from the committee.
Professor Dauvergne, you may proceed first.
:
Good morning, and thank you for the invitation to speak with you this morning about Bill .
[Translation]
I have been doing research into immigration law in Canada and Australia for nearly 20 years now. I teach refugee law in both countries.
This morning, I am going to talk about the mandatory detention system that is in effect in Australia.
[English]
I am also pleased to take questions on any aspect of Bill .
[Translation]
I would like to thank you for having the presentation I will be making this morning translated for me. Given that 10 minutes goes by very quickly, I am going to begin by making a recommendation.
[English]
I'm just going to turn to the final point I want to make.
Australia now has more than two decades of experience with a mandatory detention scheme for people seeking refugee protection. Almost everybody seeking refugee protection is detained at some point. This system has not achieved its deterrence objectives. It has harmed many people and it has cost thousands of millions of dollars. In some respects, as I will detail momentarily, it is not as severe as the Bill proposals. For this reason I recommend to you that Bill C-31 be amended to eliminate the designated foreign national regime and to eliminate the mandatory detention scheme.
Recognizing that mass arrivals do provide serious challenges for any government, I recommend as an alternative to these provisions that you consider, in the case of a mass arrival, which is to be defined as a group of more than 50 individuals, where there is potential reason for detention under the current IRPA provisions—for example, when there is a difficulty establishing the identity of individuals—that if a group of more than 50 has arrived at the same time, the schedule for detention reviews be amended to allow for adequate and appropriate consideration of those individuals. The current detention regime requires reviews at 48 hours, 7 days, and 30 days, as you are aware. In the case of a group of more than 50 people arriving, it would be appropriate to alter this schedule to have an initial review at 20 days, a subsequent review at 25 days, and then move on to the ordinary scheme of reviews at 30-day intervals for any individuals who would still be detained after 45 days.
You will have heard from other witnesses about the first two reasons to reject the proposed mandatory detention scheme. This scheme is in breach of several provisions of the Charter of Rights and Freedoms, and it also is in breach of key international human rights documents to which Canada has long been committed. What I will focus my time on this morning is the evidence from Australia.
Australian evidence has now established that the detention regime there is not deterring people from seeking refugee protection in Australia. The evidence from Australia also demonstrates that this type of detention leads to lasting harms to individuals who are subject to it.
The mandatory detention regime for all unauthorized arrivals to Australia began in 1989. The majority of those who arrive in Australia without a visa are briefly detained, but most people are now granted a bridging visa—some, if they arrive at an airport, within a matter of days. For boat arrivals it's usually within two or three months. This bridging visa serves to release people from detention into the community.
Since 2001, Australia has had two separate streams for offshore arrivals and for mainland arrivals. As of January of this year, which is the midpoint of the Australian fiscal year, there were 4,783 people in one form or another of immigration detention, including community detention, which we would call release on conditions. The estimated spending for the current fiscal year on immigration detention in Australia is $629 million Australian, and that is pretty close to par with the Canadian dollar right now.
The Australian detention regime has been under active scrutiny since 2008. Some of the changes that have been made to this scheme include a move towards community detention rather than detention centres.
Children and families, as a matter of policy, are not to be held in detention centres. They are housed in special alternative places of detention, for the most part. The parliamentary inquiry that reported in March of this year found that there were still a few children in detention, but it's against policy.
Immigration detention is now officially considered to be a last resort in the Australian scheme, and all immigration detention is to be for the shortest possible time. The newest parliamentary inquiry in Australia is recommending a maximum of three months of detention time.
If we look at a comparison between Australia's immigration detention scheme and the scheme that would result in Canada from Bill , we find that they are similar, in that there is a two-tiered system that is punitive to irregular boat arrivals.
In Australia, the time for people to be in detention is theoretically indefinite but presumptively shorter than 12 months. The Bill scheme is 12 months, but theoretically indefinite, so there's longer detention there.
Children and their families are not to be detained. The Canadian proposal, by contrast, says that young children will not be detained but may be separated from families.
In Australia, those who are in detention have priority processing for refugee claims in order to ensure the shortest possible time in detention. There is no such priority under Bill for people detained in Canada.
In the Australian scheme, anybody who is held in detention and making an asylum claim is granted legal aid for the preliminary and subsequent merit review stages of the asylum process. There's no guarantee of legal aid support in the Canadian proposal, Bill .
It's also notable that Australian experience over the past 10 years has shown that a very high number of individuals who arrive on boats actually end up with refugee status; the appendix to the parliamentary report says 90%. I recall earlier figures suggesting it's closer to 80%, but that is still a very high acceptance rate, demonstrating that people who make these kinds of journeys are in fact those who are the most desperate.
The Australian mandatory detention regime has been found, in a number of inquiries, to breach both international and domestic human rights. It has not reduced the number of people coming to Australia to seek protection. There is a new study out of Monash University—which is not yet published, but which I heard about at a conference about three weeks ago—suggesting that the variations in rates of people arriving in boats in Australia can be completely attributed to conditions in sending countries, as well as weather conditions, rather than changes in Australian law.
There have been four major inquiries into the effectiveness of the Australian system since 2001, adding tens of millions of dollars to the cost. The evidence, which is now widely accepted—and this is reflected in the parliamentary report—includes the following: there are very high levels of suicide and other self-harm behaviours among the detained community; there are very high levels of depression and of post-traumatic stress disorder; these mental health problems affect the refugee determination process and make the process more difficult to manage; prolonged detention exacerbates previous trauma; and the detention regime harms family relationships and children's mental health in particular, whether the children are in detention or separated from their families because of detention.
Current developments in Australia include a commitment to move to community detention rather than closed facilities, both because of reduction of harm and because of reduction of cost, which has proven quite persuasive.
There was a temporary regime in Australia from 2001 to 2007 that restricted family reunification rights for people arriving on boats. This regime has been dismantled, so this is a departure from the direction that Bill is heading in.
There has been extensive work to improve conditions within detention centres. The bridging visa program has been expanded, with a sharp uptick since last November, so that more people are getting out of detention.
Last, the parliamentary report on Australia's immigration detention network was just released this past March—so a number of weeks ago—running to 356 pages.
I'll conclude there. Thank you, Mr. Chairman.
Good morning. I will address the anti-smuggling provisions and designated foreign national regime as well. I intend to focus somewhat specifically on the case of the Sri Lankan Tamil refugee claimants who have arrived in Canada over the last few years.
I want to say at the outset that I endorse and rely upon two briefs primarily—that prepared by Amnesty International, in particular part I of that brief with respect to anti-smuggling provisions, as well as by the Canadian Bar Association, particularly part VI, addressing the designated foreign nationals regime. For those reasons I won't rehearse the provisions in those two briefs but point you to them.
Bill would impose multiple penalties on claimants as well as protected persons designated as part of an irregular arrival. As you know, the penalties include mandatory detention without access to review for 12 months; the denial of the right to apply for permanent residence status or family reunification until five years have passed since a favourable determination of their protection claim; denial of access to relief based on humanitarian and compassionate grounds, temporary resident permits, or refugee travel documents for five years or longer; and finally, denial of the right to appeal an unfavourable determination of a protection claim to the newly established Refugee Appeal Division.
It is my view that the minister's discretion to designate is overly broad. It's not limited to mass arrivals, and it may be applied retroactively to March 2009. Arrivals of two or more persons “by irregular means” could attract designation.
Let's be very clear: the genesis of these provisions was a response to the arrival of two boats off the coast of British Columbia, the Ocean Lady in the fall of 2009, followed by, almost a year later, the MV Sun Sea. These provisions have been specifically targeted to the case of the Sri Lankan Tamil refugee claimants. If we have any doubt, the proposal to make them retroactive to March 2009 should leave no question lingering.
I will say more in a few minutes about that, but I want to emphasize that in my view these provisions are unconstitutional and violate a number of important provisions in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, as well as the 1951 refugee convention.
These violations are detailed very thoroughly in the CBA and Amnesty briefs, as well as in the May 3 submission of the Canadian Association of Refugee Lawyers, “Canada Must Protect, Not Punish, Refugees”.
I want to urge quite simply, and in the most forceful terms, that we ensure that these provisions are eliminated from the final version of Bill . It is my view that no amendment or incremental improvement around the edges should be acceptable. I want to point out that existing tools within the Immigration and Refugee Protection Act are more than adequate to deal with genuine concerns about mass arrivals.
Let's look at how the system responded to the two boats off B.C.
Refugee claimants were detained until authorities were satisfied that they knew who they were and/or that they didn't pose any security risk. Those for whom there were still concerns remained in detention until those concerns were addressed. It's true that detention reviews are supposed to take place within the first 48 hours. It's merely a review; it doesn't mean that somebody gets released after 48 hours. Indeed, as I mentioned, many refugee claimants were subject to prolonged detention while authorities addressed concerns about who these people were and whether or not any of them posed a genuine risk.
For people on those boats with respect to whom there were security concerns, the government had ample tools in its legislative tool box to designate them a risk and use admissibility procedures before the Immigration and Refugee Board to bar access to the asylum procedure altogether. Indeed, a number of people, particularly those arriving on the Sun Sea, faced those very procedures.
What I want to emphasize is that concerns about irregular arrivals are legitimate. It does pose an enormous burden on a government to process a large group of people who all arrive together—when it's some 500 people, for example—but we have the tools to deal with it, and they work, quite frankly. I see no reason to impose what in my view would be an egregiously draconian set of provisions on people, many of whom may end up being genuine refugees. I want to say that at the outset.
I want to go back to the situation of the Sri Lankan Tamils because there seems to have been much misunderstanding with respect to the causes and conditions that led these people to assume risky voyages in the first place and to brave several months on the high seas to come to Canada.
Sri Lanka, as you may know, is a country that has been wracked by ethnic conflicts that spiralled into civil war, the roots of which can be traced to the period immediately following the country's independence. For 30 years, this civil war was brutal. Atrocities were committed by all parties to the conflict, but we need to keep squarely in view the fact that the primary driver of that conflict was the Sri Lankan state's failure to recognize minority rights within that country: its failure to grant its Tamil citizens, some 18% to 20% of its population, equal rights.
With intermittent ceasefires when conditions appeared to ameliorate, things improved. However, overall, there were significant rates of disappearances, extremely high rates of torture and detention, and a complete lack of accountability throughout the course of that civil war.
The war finally ended with the defeat of the LTTE in May 2009, but as the International Crisis Group has noted in a series of reports over the past three years, including two very recent briefs in March, we see neither peace nor even modest steps toward genuine reconciliation in that country. Indeed, there is deepening militarization in the north and a policy of Sinhalization, a policy that explicitly privileges the majority ethnic group and continues to systemically disadvantage Tamils and Muslims, the two minority groups in Sri Lanka.
Now, recent media reports have suggested that acceptance rates for Sri Lankan Tamils have plummeted. I'm making reference to a recent report in the National Post, but in reality, Sri Lankan Tamils were accepted at the rate of some 57% in the last year. Of all claims made by Sri Lankan Tamils, 57% were accepted. That's a very significant number. Yes, it's down from the high of some 91% of positive claims in 2009, but it is still a very significant number.
I put a call out to refugee lawyers across the country when I realized I would have the opportunity to appear before you today, and I asked them to send me the positive decisions they've received with respect to clients they've represented from the Ocean Lady or the Sun Sea. I had an opportunity to review four such decisions very recently, four positive decisions, three from the Sun Sea and one from the Ocean Lady, and I want to share with you some of the observations made by the board members in those cases.
They include observations such as this one: that the Sri Lankan government continues to screen and check former Tamil Tiger members and those it has suspected in the past of being a Tiger member or supporter. This is seen as a pre-emptive strategy to discourage Tamil radicalization.
Suspected Tiger members and rehabilitated Tiger members are regularly subjected to rearrest or harassment or are forced to act as informants for the military. The new detainees are often not formally charged. Many are tortured.
Under the Prevention of Terrorism Act, government officials who may commit wrongful acts such as torture are provided with immunity from prosecution. Legal proceedings against government officials are prohibited if an individual acted in good faith.
The long and the short of it is that human rights violations persist in Sri Lanka to an enormous extent.
Do Sri Lankan Tamils have a choice in terms of what to do? Those who are able to get on a plane and fly to Thailand, Malaysia, or Indonesia, or to take a voyage to India, find themselves languishing for years. In Thailand in particular, I want to emphasize, there are still at least 60 people in detention in deplorable conditions, without adequate hygiene or nutrition.
They are told to join the queue, yet there is no queue. These countries are not signatories to the UN refugee convention, and at best they wait for years.
:
Thank you for the question.
As I touched on just at the end of my remarks, the problem is that there's no process for doing that. Neither India nor Thailand—nor Malaysia or Indonesia, for that matter—is a signatory to the refugee convention. None of those countries has implemented refugee status determination procedures.
At best, what can happen in a country like Thailand, for example, is that the refugee claimants can approach the UNHCR to register. They're given a form of documentation that is supposed to serve as evidence to the Thai authorities that they've registered with the UNHCR and that they're in process for the possibility of resettlement. In the meantime, they're at risk of being rounded up, arrested, detained, and sent back to Sri Lanka by Thai authorities. It's a very precarious life.
Those who are lucky enough to be identified for resettlement will wait years. Imagine this if you are a family with young children. You fled human rights violations in your country of origin—in this case, we're talking about Sri Lanka—you came to Thailand hoping for a solution, and you are told that you have no right to stay in Thailand, to integrate, to work, and to build a life. Yes, you can join the queue, you are told, but your child will probably be of university age by the time he's identified for resettlement to Canada. What kind of life is that?
Essentially, it's a holding pattern. At worst, it's detention. At best, it's a marginalized existence, with no right to participate in a community in which you're situated.
So regional solutions, yes, and I am absolutely an advocate for them. But that means countries getting together and coming up with genuine solutions for the global refugee situation, not simply saying that those refugees should stay in the region where they came from when there's no procedure set up to deal with them.
Good morning, and thank you for being here with us today and for the time you took to prepare your presentations to us.
I have a whole bunch of questions, but unfortunately I'm limited to seven minutes, so I'll try to get in as many as I can.
With regard to the motivation for why this bill has come here, clearly the current system is not working, not when refugees have to wait 1,038 days on average to finalize their claims. It's a heck of a long time for someone to be stuck in limbo. With the provisions in this bill, we're looking to reduce that to 45 days for people coming from designated countries and 216 days for other claimants.
Having said that, I've heard your presentations this morning, and they're very similar to a lot of presentations we heard last week, certainly from the academic, if you will, and theoretical side of the equation. But there is the reality, the practicality, of what we're dealing with when these folks come here, especially, obviously, through irregular means.
I have a question regarding the United Nations High Commissioner for Refugees—the UNHCR, for quick purposes.
The UNHCR has recognized the validity of providing expedited processing for refugee claimants from designated countries of origin. In fact, former UNHCR Commissioner António Guterres has said, and I quote:
...there are indeed safe countries of origin. There are indeed countries in which there is a presumption that refugee claims will probably be not as strong as in other countries.
The UNHCR has also indicated that it's completely legitimate to accelerate these claims.
I have a few questions around that.
First of all, is that correct?
:
We therefore undertook an awareness campaign with the objective not of persuading people to our position, but simply of informing them about the content of Bill . And what happened was that a majority of the students we approached were opposed to the proposed changes. In the space of just four hours, we collected over 150 signatures to stop Bill from being passed. I would also like to ask the committee's permission to send it a copy of the petition.
Ladies and gentlemen, members of the committee, why do you think that young students like us are wary of this bill being enacted? The reason is that we make up a demographic group that takes an interest in the news and in Canadian politics, but that actually will not hold any seats in the House of Commons for another 10 or 15 years.
In the meantime, we are apprehensive as we follow the enactment of new laws like this one, which proposes to put entire groups of newcomers, including minors, in detention for one year. We are shocked by the fact that families will be separated for at least five years. We are shocked that entire countries might be considered to be safe, when to obtain refugee status, a person has to prove that they have been persecuted in their country, as an individual.
We consider it to be anti-democratic that the responsibility for drawing up that safe country list will be assigned to just one person, the minister. We wonder why the government considers the distinction between real refugees and bogus refugees to be so important, and penalizes the latter group. Even if they do not meet all the criteria in the official definition of a refugee in the Geneva Convention, a large majority of those refugee protection claimants are in need of help.
We are also disappointed that the minister would deny that the proposed changes will in fact punish these so-called bogus refugees.
:
When our generation assumes the political positions that you now occupy, we do not want the burden of correcting past mistakes. While we are welcome participants in Canada's democracy, and our testimony at this hearing is proof of that, it is you who are its current caretakers. We ask you to consider the long-term consequences of this bill and how it will shape the country we will inherit.
By disregarding Canada's international obligations, Bill threatens Canada's moral integrity on the international stage and the soft power that comes with being a humanitarian state.
When Australia implemented similar legislation, its image and reputation as a humanitarian state were called into question. We do not want to see that happen with our country.
Furthermore, infringing on the rights and dignity of asylum seekers—as are guaranteed by the Canadian Charter of Rights and Freedoms—puts everybody's rights at risk. When one person loses their rights and dignity on Canadian soil, everyone's rights and dignity are put at risk.
Moreover, our peers are in consensus with us that Bill represents a misuse of finances. As the Auditor General's May 2008 report notes, it costs $70,000 a year, on average, to detain a refugee claimant. Had Bill C-31 been law at the time of the MV Sun Sea arrival off the coast of British Columbia, Canadian taxpayers would have spent $34,440,000 on detaining people who had done nothing but exercise a right guaranteed to them by international and domestic law.
As there currently exist provisions under the IRPA for detaining individuals who are deemed a threat to Canada or who cannot be identified, generalized detention is unnecessary and expensive. We believe it would be more responsible and productive to use taxpayer money to perhaps hire more legal aid workers and lawyers to help refugee claimants navigate the determination process, or to create more positions on the Immigration and Refugee Board, which would not only ensure a fair hearing for refugee claimants but would help to expedite the process.
Bill is not a political or a financial legacy that we wish to inherit. Rather than leaving it to us to correct this mistake in 10 years, we ask you, the honourable members of Parliament, to make sure we avoid it altogether.
:
Good morning, everyone. I would like to thank the committee for giving Amnesty International an opportunity to present its views on Bill .
Amnesty International has analyzed this bill from the perspective of the following three points. First is our expertise in the area of compliance or non-compliance with international human rights law and Canada's commitment in that regard. There is also our experience. We are often asked to protect the rights of asylum seekers in Canada and we intervene when we consider it to be necessary. And there is our commitment, at the global level, to protecting the rights of people who immigrate and are trying to flee fear and want, as the Universal Declaration of Human Rights says, at whatever cost it may be to their families.
To begin with, we acknowledge that the process for accepting refugee claimants is difficult and complex, and will certainly always have its imperfections and inconsistencies. It calls for an ongoing process of change and reform. Amnesty International agrees that it is the responsibility of governments to guarantee the integrity of any refugee determination system. Those changes and reforms, which are certainly designed to achieve greater effectiveness and are concerned with abuses, must nonetheless always be based on respect for the rights of claimants.
Amnesty International is concerned. Bill , which is being considered today, violates Canada's obligations under international law and violates the Canadian Charter of Rights and Freedoms. We will start by identifying the issue of discrimination, which we are disappointed to see can be found in several provisions of the bill. All refugee claimants should be treated fairly. The discrimination is based not only on manner of arrival in Canada, but also on country of origin.
My colleague, Alex, will come back to three general provisions of the bill that would, if they are implemented, generate serious violations of international laws relating to protection of refugee claimants, to human rights and to the Canadian Charter of Rights and Freedoms.
The first provision talks about making it mandatory for designated foreign nationals to be imprisoned with no review of the grounds of detention possible. The minister may decide that a person is a designated foreign national if the minister believes the person used human smugglers to enter Canada. The second provision makes it impossible for designated foreign nationals to appeal an unfavourable determination regarding their refugee status. And the third provision talks about identifying countries of origin as safe solely by decision of the .
The following points are also of concern to us: the fact that access to permanent residence status is barred for five years, which prevents family reunification; the times allowed, which are much too short and unfair; and the unfairness and impossible choices that exist between the refugee protection process and the humanitarian reasons process.
Amnesty International has nine recommendations to ensure that, at a minimum, this bill meets Canada's international obligations in relation to human rights. What we are talking about are obligations that Canada itself helped create and develop.
I am going to let Alex speak to the next three points.
:
Thank you, and good morning, committee members.
The right to liberty is a cornerstone human right grounded in the innate human yearning for freedom. Human rights norms universally, therefore, make it clear that the state's power to take away liberty through arrest and imprisonment is and must be constrained and restricted. To ensure that the right to liberty is well protected, human rights treaties clearly lay out that anyone deprived of their liberty must first be informed of the reasons for their imprisonment and then have a prompt and effective opportunity to challenge their imprisonment before a judge or other legally authorized person.
Amnesty International's research has demonstrated that asylum seekers and other migrants the world over are particularly vulnerable to abuses of the right to liberty. In particular, it has become clear that numerous governments have resorted to locking up refugees and migrants as a means of deterring other refugees and migrants from coming. Nothing in international law recognizes that as a valid reason to take away liberty.
International law does recognize that states have the right to control their borders. There is also, of course, an obligation to ensure that individuals are not sent back to countries where they would face persecution. At the border, therefore, international law is very careful. It has recognized that only for a length of time strictly necessary may a state be justified in detaining asylum seekers to verify an individual's identity, to ensure that someone who poses a flight risk will appear for proceedings, or because someone poses a demonstrated threat to security. But there must be a timely ability for the individual to challenge the reasons for their imprisonment.
International standards recognize that the liberty rights of certain groups of migrants, such as asylum seekers and minors, must be particularly scrupulously protected. The refugee convention, for instance, lays out that the mere fact that an asylum seeker has entered a country through illegal means is not in itself valid reason for punishment. The UNHCR's guidelines on detention note that asylum seekers have often experienced considerable trauma and hardship that must be taken into account in making any decision to detain them. International law with respect to both refugee protection and the rights of children is also very clear that minors should only be imprisoned as a measure of absolute last resort.
Bill contravenes these universally established norms protecting the fundamental right to liberty. Individuals are not detained for any of the recognized grounds for detaining migrants, such as verifying identity or dealing with flight risks or security threats, all of which are already well established in Canadian law. The reason they lose their liberty is instead the mere fact that they have entered Canada as part of a group of individuals designated by the minister to be an irregular arrival. It has nothing to do with the individual's own circumstances. It makes no difference whether they have a plethora of valid identity documents or a collection of forgeries, whether they are guaranteed to show up for future proceedings or almost certain to go underground, or whether they pose an obvious and grave threat to national security or are a paragon of virtue. Their arrest and imprisonment are automatic, solely on the grounds of how they arrived. There's no exception for individuals who make refugee claims. There's no exception for individuals who have experienced torture, rape, or other human rights violations. There is no exception for minors over the age of 16.
The problems with this new detention regime do not end with the grounds for arrest and imprisonment. They extend to the crucial internationally mandated requirement that individuals who are locked up must have meaningful and regular access to a judge or other authorized person to challenge the reasons for their arrest and seek their release. Under Bill they do not. The immigration division is to review the reasons for their continued detention on the expiry of 12 months after they have been taken into detention, and “may not do so before the expiry of that period”.
Arbitrary mandated detention without timely review violates Canada's international obligations. UN-level human rights bodies have made this clear. The UN Committee Against Torture, commenting on similar mandatory detention provisions in Australia, called for it to be abolished. Notably, that same committee will be reviewing Canada's human rights record later this month, and this issue is in front of them.
Last month the UN Committee on the Elimination of Racial Discrimination called on Canada not to go ahead with mandatory detention provisions. Those provisions should be withdrawn. Canada rightly criticizes arbitrary detention in other countries. We cannot do so credibly if we legislate it ourselves.
The safe country of origin concept is also one that Amnesty is concerned about. We're concerned that it is not workable and cannot be applied in a principled manner. We know. Human rights research and reporting are things we have been doing for over half a century. We grapple with this all the time.
Amnesty International is asked to do exactly this all the time: to rank countries, to compare countries, to measure countries from one year to the next. We're asked to give a statistical measure summing up a country's human rights record, and we do not do so for several reasons, but very pragmatically we do not do so because there is no way to do it objectively and accurately. There is no way to draw the line between countries that are safe and countries that are unsafe when it comes to human rights.
How does one compare a country that has widespread torture but generous access to education with a country that has no torture but draconian laws that limit access to education for women and minorities? How much torture, how much restricted education, just how much and of what would it take for a country to move over the line from safe to unsafe or from unsafe to safe? It cannot be done in a way that doesn't in the end involve subjective and arbitrary line drawing, and when it comes down to people's lives, rights, and freedom, subjective and arbitrary are not acceptable. There is too much risk of countries being categorized as safe, therefore, because of irrelevant trade and foreign policy considerations, and in that regard we were troubled to see that an earlier proposal for an expert advisory committee in this area is no longer on the table.
First let me just say how proud I am to be a Canadian today. Your testimony reminds me of where I was as an international relations student, not long ago, it seems, in my mind, and, by the way, it won't be 10 years before you're members of Parliament. You don't need to wait that long. Thank you for being here.
Amnesty International I've supported personally. My family also has, perhaps because of Charlie Pley, my law school classmate, who was very involved in Amnesty in Ontario. Again, I'm proud that you're here today.
However, I want to say that while we rally around the same conclusions, that as Canadians we want to extend compassion to people who are in these unacceptable circumstances, my interpretation of the bill differs from yours in some ways. One of the basic issues I have is that I think it's also a human rights violation for us to keep people waiting for over 1,000 days, on average, the way we currently do, to process them, and I believe we need to do that faster. In this difficult position of being decision-makers in government, we have to make some decisions, and it's inevitable that there will be individual cases and problems with the decisions we make.
Let me ask you this first. If you understood that a large percentage of claims from certain countries—and I'm referring to the EU countries—were being abandoned or withdrawn, if you knew that people who come in from those countries were occupying a large amount of our financial resources—and Kelsey referred to financial usage—and you knew that they were using a lot of the processing time, which is therefore delaying the processing time for people who ultimately, we know, are refugees, wouldn't that in itself be something we would have to tackle? The percentages are very large. We're learning that about 90% of claims from Hungary weren't withdrawn, so there is where the bill moves to designating so-called safe countries.
Let me just throw in one more thing. Don't believe for a minute that the minister can totally, arbitrarily, and capriciously decide which are safe countries, because our Federal Court will require him to be accountable vis-à-vis certain criteria. The criteria, by the way, are laid out in the bill, criteria dealing with, for instance, countries where the numbers of claims are withdrawn or abandoned. So he has to be guided by that, and not arbitrarily and capriciously just say what is a safe country.
Let me get a response from Amnesty.
[Translation]
I would like Ms. Angeley and Ms. Fortier to answer as well.
There are many international legal provisions at stake when we look at the detention regime here. It starts with the Universal Declaration of Human Rights, which guarantees against arbitrary arrest and detention, and the need for regular, timely access to an ability to challenge the reasons for detention.
It's repeated in the International Covenant on Civil and Political Rights, which Canada ratified in 1976.
There are provisions in the Convention on the Rights of the Child that deal in particular with the liberty rights of children and the importance of ensuring that they are not subject to arbitrary arrest. In fact, their detention is only an option of absolute last resort.
There are also numerous provisions in refugee law. The hard-law provisions in the refugee convention, for instance, make it clear that simply because a refugee claimant arrives in a country through illegal means, which is a very normal and necessary step for many refugee claimants, that is not in itself grounds to punish him or her. Obviously, imprisonment constitutes punishment.
There are also guidelines and other documents from the UNHCR that make it very clear that detaining refugee claimants should not be a normal course and that great care should be taken, particularly with respect to refugees who are vulnerable: children and survivors of rape, sexual violence, and torture. There are no provisions in this legislation for that.
First of all, I want to thank all of you for coming and for making the presentations.
It always warms my heart when we get presentations from our youth and from our university students. They are so heavily engaged in social justice issues and looking at the future, at the kind of Canada we want, at the compassion that we all associate with Canada.
To either Karina or Kelsey, in Bill C-31 there is a concept that's being introduced of a conditional permanent residence, basically. That is, you could actually be recognized as a refugee, get your PR card, but six, ten, thirteen years later you could be told, “Well, things have gotten better in your home country now”, and there could be re-designation, so to speak.
This is just one example of more and more power being positioned into the hands of a minister—and it's nothing against one minister; it's any minister for any government.
What do you think about the extent of the powers being given to the minister via this bill and about our ability to re-designate and send back?
This has become a recurring theme. I had hoped that when we started the process, in terms of witness presentation—and I don't hold any of you responsible for this—we would be hearing from different themes in terms of support or not support of the bill. I find I'm repeating myself on a regular basis.
Based on the opposition that you have to the bill, I understand your perspective, but we have heard it on a number of occasions already. In fact, I do want to clarify a couple of things.
Number one, the former United Nations High Commissioner Abraham Abraham said that the UNHCR does not oppose the introduction of a designated or safe country of origin list, as long as this is used as a procedural tool to prioritize or accelerate examination of applications in carefully circumscribed situations and not as an absolute bar. Many countries, including the United Kingdom, Ireland, France, Germany, the Netherlands, Norway, Switzerland, and Finland all use and implement the designated safe country.
In terms of the criteria for claimants from countries—for example, there are two quantitative thresholds for countries that have a mass number of applications into our country, for those who are seeking asylum as refugees. They have to meet one of two quantitative thresholds, or limits, as set out in the order. The proposed triggers for a review are based on rejection rates, withdrawal, and abandonment rates. A rejection rate, which includes abandonment and withdrawal, of 75% or higher would trigger a review. Similarly, an abandonment and withdrawal rate of 60% or higher would also trigger a review, and I repeat “a review”. It doesn't automatically mean that the designation is going to take place. An internal review led by the Ministry of Citizenship and Immigration, in partnership with a number of other ministries within the government, will make the determination or recommendation based on a review that the country that is in question has either hit the criteria from a quantitative perspective or is subject to a review based on the number of withdrawals or abandonments that we have seen. So there are defined criteria that will be here.
I was part of Bill . I sat through every minute of the hearings, and also the negotiations in terms of moving it forward, and 80% to 85% of Bill is going to move forward. There are just additional aspects that we have brought to the table here.
Under Bill , which was a problem with respect to the designated country, there was no provision for transparent criteria. The criteria would be determined by the group itself. The concern we had was (a) what would those criteria consist of, and (b) there were no assurances as to the time allocation of how long that determination process would take. So at least through here, (a) we have a transparent set of criteria, and (b) we actually know the timeframe within which this designated country application will actually take place.
For claimants from countries with a low number of claims, we're actually going to move to a qualitative checklist, which will be established right in the legislation itself. So the qualitative checklist will include (1) the existence of an independent judicial system in that country; (2) recognition of basic democratic rights and freedoms, including mechanisms for redress if those rights or freedoms are infringed; and (3) the existence of civil society organizations.
While I respect that you may not agree with the process in terms of how we come to the conclusion, it's unfair, and it's also untrue to state that there aren't qualitative and quantitative criteria built in to both the legislation and the mechanism that will be used to go through the process for review. It's really important that this gets put on the table. I think part of the reason that folks come to the table and state that they're unsure of, or leery of, the designated safe country is that this information isn't necessarily at your fingertips. I do understand that is a concern, but I also understand that as we move forward in terms of Bill ...and part of the reason why we're doing these hearings is to afford us all the opportunity to understand the bill as it sits in a much stronger form.
Kelsey, I wanted to ask you about one of the concerns I have. I respect the fact that the opposition to a particular piece of legislation is democratic, but so is the support of the legislation, and we've heard from a majority of Canadians across this country that in fact this bill doesn't go far enough and that it should be more aggressive in its nature. We don't necessarily agree with that. We want a bill that is going to do both: suit and meet the expectations of most Canadians, and also, obviously, respect the rule of law as closely as we possibly can.
You spoke a number of times about the issue of rights and fairness. Over the last decade, we're talking about approximately 100,000 to 120,000 refugees who have come to this country and have been accepted, of which there were only 600 in the last decade.... Two ships have come here with approximately 600 people, and you've spent a great deal of time focused on the rights of those 600 individuals, while not acknowledging and complimenting the fact that between 100,000 and 120,000 refugees in fact have had those rights, in the same aspect that you're talking about.
So what we're concerned about here is only one small part of the bill, which gets at the irregular arrivals. I think it's important to note that we are talking about...less than half a per cent of the impact of our system within this bill is focused on those who come as different arrivals—other than by land or off-land.
I come to this point because currently we have over 40,000 individuals who have claimed refugee status in Canada and who we can't find. We don't know where they are. We have over 2,000 individuals who were approved for permanent residency or refugee status and actually got it by basically cheating the system, by not being forthright and honest about their perspective—or at least their claim.
For me, when you say we have to protect the rights of an individual, we also have to protect the rights of Canadians, and my concern is that we cannot.... I know it's important that everyone is as equal as we can potentially come to, but there is a balance that gets struck when we have over 40,000 people—and that's why I believe the system is broken—who we currently cannot locate. We do not know where they are. Now, we don't know if they present a danger to society; we won't know until something actually happens. But then...and there, I think, is where the rights of Canadians as individuals are and that we as a collective have to ensure. The government's responsibility is to protect those rights as well.
:
I'd like to call the meeting back to order. This will be interesting because we have so many people present.
We have Ambassador Brinkmann, who is here leading a delegation of the European Union to Canada. With him in Ottawa is Jose-Antonio Torres Lacas, who is the first counsellor, and Terri-Ann Priel, who is the adviser on political and public affairs.
We also have eight people in Brussels by teleconference. I'm not going to introduce you, so before you speak, could you identify yourselves, because it's complicated here. It will make it easier when you answer a question if you just give your name before you speak.
We also have, by video conference from the Federal Government of Germany, Anja Klabundt, counsellor of the European harmonization unit, Ministry of the Interior; and Roland Brumberg, counsellor of immigration law, Ministry of the Interior. Good morning to you.
I see a third person there. Is he just observing?
:
Thank you, Mr. Chairman, honourable members of Parliament, ladies and gentlemen. Good morning. It's a great pleasure to be here. I'd like to thank you for inviting us to this important hearing.
This bill is of interest to the European Union, mostly on two aspects. First I would like to say that we are ready to answer any questions you might have on how we deal with these issues in Europe, but we're not here to comment on your legislative process. It's not for us to comment on draft bills you deal with. We are more than happy to answer any questions you have on our own policies.
Why is this of particular interest to us? There are two aspects. The first is immigration policy. For us, Canada is a model as concerns the immigration policy and the resulting multicultural society you have, the pluralism. You probably know that in Europe we have some difficulties with these issues, with integration. Some have stated it's the end of multiculturalism, and so on. Therefore, we watch all this with great interest, and we have made reports on that to Europe.
The situation is also different in Europe, of course. We have nation states with very homogeneous populations, where immigrants stand out, whereas in Canada, as you know, almost everybody is an immigrant or is descended from immigrants. Immigration into Europe is mostly of a different quality than in Canada. In Canada you choose most of your immigrants. You want qualified people, whereas in Europe most immigrants come from the south, and the majority are almost illiterate, and so on. So it's a different situation.
The second aspect of why it's interesting for us is the visa issue. Citizens from three of our member states—Romania, Bulgaria, and the Czech Republic—still require visas to come to Canada, whereas Canadian citizens have visa-free travel within the entire European Union. For the countries concerned, but also for the European Union as a whole, it's a serious issue because of matters of principle. Our visa policy is based on the principle of reciprocity. If you grant visa-free access to one country, then that country should also grant you visa-free access to its territory. It's also because of solidarity among member states. This is a problem, especially the reintroduction of the visa for the Czech Republic. We are working to solve this issue as soon as possible.
That is linked to asylum policy, I would say; therefore I would like to briefly explain to you immigration and asylum policy in the European Union—just the big headlines—and leave it to the experts to go into the details.
The issue of immigration and asylum is traditionally a responsibility of the member states and national competence. They deal with that in accordance with the applicable international instruments, like the Geneva Convention, and their national laws. However, since 1999, at the European level we have tried to work on a common asylum policy. Like so many things in the European Union, it is a work in progress—a process in progress—and we're still working on it. We do that through legislation at the European level, mostly with directives that then have to be implemented by member states through practical cooperation and the harmonization of national practices.
We work under the principle of minimum standards. That means that member states, individually, can go further in the protection of refugees and grant more rights or more favoured treatment. There are minimum standards for protection: material conditions, such as housing, food, etc.; access to the labour market, which would be granted after 12 months in the territory; and assistance for vulnerable applicants, such as unaccompanied minors, pregnant women, and victims of torture and violence and so on.
After a maximum of six months after they have applied for asylum, they should have their “first instance” procedure.
You may know that in the European Union we have free movement of persons. But also within the 23 member states we have the Schengen, in which there has been an abolition of border controls. You can drive from one member country to the other inside the Schengen area without even slowing down. It's like going from Ontario to Quebec. There are no border controls at all. That means completely free movement, which also applies, of course, to asylum seekers. That has resulted in a problem we call “asylum shopping”. People apply for asylum in one member country, and when they're refused there, they go to another one and reapply there.
To resolve that problem, there is the Dublin II Regulation, which serves to determine which member state is responsible for dealing with an asylum claimant. It's based on certain criteria, such as country of first entry and so on.
Also, fingerprinting of asylum seekers has been introduced. These fingerprints are stored in a database called Eurodac. When an asylum claimant presents himself or herself, fingerprints can be checked to see if an application has been made and treated somewhere else in the European Union. If that's the case, the asylum claim is not admissible.
I should make clear that this only applies to third-country nationals—people who have come from outside the European Union who are asking for asylum inside the European Union. Between member states, we don't accept asylum seekers from one member state who is going to another member state. The treaty itself says that because we have democracies based on the rule law, and we have oversight of this rule of law and the principles of asylum and so on by the European Commission and the European Court of Justice and so on, an asylum seeker from a member state is inadmissible in another member state he or she goes to.
Finally, I have a comment on numbers. We have, on average, around 250,000 asylum seekers in the European Union. The number increased last year with the Arab Spring, as you know.
There are big variations from country to country. Some of the southern member states, which get boatloads of people coming over the Mediterranean Sea, have had a maximum influx. But to give you an idea—
By now we have already heard a lot of things about the European system of asylum and immigration, so I will make it very short.
The German legislation is influenced by the European legislation—it has to be influenced by it a lot—and therefore I don't want to mention all these subjects again that we have heard about.
I will just start with numbers. In 2011 Germany had 45,000 asylum seekers. This was an increase of 10% compared to the previous year.
As far as national legislation is concerned, I might give you a very rough idea about the structure of our legislation in order to help you shape questions regarding our legal structure.
We make a systematic distinction between regular, legal, and illegal immigration on the one hand and the regulations on asylum seekers on the other hand. That means that only in cases of asylum claims are there special rules that are different from those in the regular regime.
If a person claims asylum, the person falls under a special procedure for the examination of the claim. If there is an appeal regarding the administrative decision on the asylum claim, then there are special modified procedures. Appeals against decisions on asylum cases follow the regular rules of administrative courts in Germany.
In the case of a positive decision on an asylum claim, a person would fall back into the regular immigration regime and would be granted some advantages towards gaining a permanent residence permit, as long as the asylum status is not withdrawn.
In the case of a negative decision, the person falls back into the regular immigration regime as far as deportation is concerned, so there are no special rules as far as asylum seekers are concerned. The same regulations apply as they do to anyone else not staying in the country legally. A person who has applied for asylum might be barred from getting a residence permit in other circumstances, such as under family reunification or as a student in the country. These are negative effects of having claimed asylum unsuccessfully.
This gives you a very rough idea of the German system. We look forward to your detailed questions.
:
Thank you, Mr. Chairman. It's a pleasure to be back.
Your Excellency and witnesses, thank you for being with us today.
I'm going to pick up on what Ms. James said, because I'm not completely sure that a complete picture was given to you.
The legislation currently before Parliament would allow the Minister of Immigration himself to designate certain countries as safe. Also, it allows the Minister of Immigration himself, or herself, as the case may be, to designate as irregular arrivals people who arrive in Canada other than by being settled through the UNHCR process. This would apply to groups of two or more, although that is undefined in the bill. If the minister designates people as irregular arrivals, then they would be prohibited by this legislation from making permanent resident applications in Canada for five years, and it would also ban them from sponsoring family members for a period of five years. If they come from a so-called safe country, unlike other refugee claimants they would have no access to the Refugee Appeal Division, which is an appeal division set up under this legislation, and they're subject to be mandatorily detained for up to one year without review.
The reason I'm telling you all those things is it's in those factors that many people have asserted that this legislation would violate the UN convention on refugees and the UN Convention on the Rights of the Child, because what it does is it imposes penalties on refugees who arrive on Canada's shores by irregular means, contrary to article 31 of the UN convention on refugees, which says that no signatory state may impose a penalty on a refugee claimant because of their mode of arrival.
Now, with that context, I want to ask any of you if you know if any European states have special prohibitions on refugees that give them fewer rights than other refugees because of their mode of arrival into your country.
:
My name is Angela Martini. I work on borders, but I worked for many years on asylum.
I would also like to underline one fact that you are aware of, Mr. Davies. Contrary to Canada, in Europe the vast majority of asylum seekers arrive by irregular means. The vast majority of asylum seekers who arrive here don't have travel documents or visas. Very few arrive by regular means. You are aware that resettlement in the European Union is not very developed. For us, of the 250,000 who arrived last year, a big chunk arrived irregularly.
As Ioana said, they're not penalized. When they arrive from a country that has been designated at the national level as a safe country of origin, they go through a quicker procedure. They're not penalized. There is a presumption that their claim is unfounded. They still have access to remedies.
If I may add, regarding the first question about the duration of a procedure, there is no such thing as the ideal duration, whether it's too short or too long. Too long we could say is if someone is stuck for a year waiting for a decision. The most important thing is that the guarantees of the asylum seeker are respected so that he or she has access, for instance, to a lawyer and to an interpreter, that the interview takes place allowing enough time for the applicant to put forward the elements of his or her application, and that there has been access to a judicial review. The assessment is to be done more on the merits of the individual examination rather than to say that 14 days is too short a time, or not. It might be a perfectly adequate period of time if the procedural steps are being respected.
Ambassador, thank you so much for joining us today.
I want to thank the officials from the European Commission and from the Federal Government of Germany for joining us today.
We're in the midst of evaluating this new legislation, as you may very well know, which we believe is going to speed up our system. One of the things that is clogging our system, one of the elements, is that we are getting a large percentage of claimants—particularly from the European Union, I might add—who end up clogging the system. At some point throughout the processing of their claim, they end up abandoning their claim and returning to their home country.
I was wondering if I could get your opinion on that. First of all, are you seeing that same phenomenon in the EU? Second, in your opinion, would someone who is genuinely fleeing from persecution of some nature abandon a claim in a free and democratic country like Canada and return to the place where they're potentially in danger?
Perhaps we can start with our German officials and then go to the European Commission.
Mr. Brumberg?
I want to thank His Excellency and every other presenter who is here. I think it's very courageous of all of you to give up this much time to face a committee across the great waters.
Just for the record, Canada does recognize members of the Roma community as convention refugees. In the 2011 country report we received the other day, 165 applicants from Hungary were accepted by the IRB, compared to 117 from North Korea. The numbers being withdrawn or abandoned in 2011 actually went from 95% previously right down to 55%. I just want to put that out there, because as Canadians we have recognized that they are refugees who are deserving of that designation.
We've also heard information regarding Roma and EU countries. His Excellency made it very clear that there are no asylum seekers from member states within the European Union.
We have also heard a lot about this free movement of people within the EU. Why do they have to travel on dangerous boats or by plane to come to Canada? Why can't they just go to a nearby country? The right of location within the EU is really limited. For example, you can move somewhere, but after three months you have to have a job. You stipulated that.
We also know and have heard reports that there's a high level of prejudice against Roma in EU countries, and they're finding it hard to find jobs. Plus the economy doesn't help. Mass deportation of Roma from France in 2010 was also another indication of the kind of persecution they face.
Why do EU countries refuse to accept that some Roma fleeing Hungary, the Czech Republic, and Slovakia could be refugees, when other countries such as Canada have officially ruled that numerous Roma are indeed convention refugees?
Thank you to all of you gathered here today. There's a history of friendship between our nations, which is I think epitomized by the gesture of Anja and Roland to have our two flags sitting in front of you, so danke schön for that.
My colleague, Ms. Sims, has referred to the ongoing trade negotiations. Of course, we would love to broaden the already strong ties between our two countries.
Your Excellency, you referred to the visa issue in the Czech Republic. One reason we are here today, of course, is because of the influx of unsubstantiated refugee claims from the Czech Republic, which led in July 2009 to that visa requirement. Of course, we are trying to deal with that refugee issue as we speak today.
My first question is directed to you, Anja, and perhaps to you, Your Excellency. Do I understand that the Roma are not completely barred from claiming asylum in a neighbouring European country and it's just that the restrictions or the rules are different if you come from a neighbouring European Union country?