[Recorded by Electronic Apparatus]
Tuesday, April 25, 1995
.0905 
[English]
The Chair: Order.
The chair has received notice of four motions from Mr. Mayfield. These motions, by the way, appear on your agenda for today. Since Mr. Mayfield is not here, why don't we begin withMr. Gordon King.
Mr. King, welcome to the committee. You may begin when you are ready. You have a presentation that you've already submitted to the committee, from what I understand.
Mr. Gordon King (Individual Presentation): Yes, I have a presentation. I would like to make an oral presentation, which will be substantially shorter than the written one.
I wish to express my gratitude to the Standing Committee on Citizenship and Immigration for the invitation to testify about refugee determination in Canada, and specifically gender-related claims.
I would also like to express thanks to the Save the Children Fund of British Columbia, a development agency located in B.C., which has given me these two days in order that I may make this trip to Ottawa.
I'd like to say a few words about myself and why I'm here.
I learned something about persecution when I taught theology for the Bolivian Baptist Union in Cochabamba, Bolivia.
.0910
In the year 1979 a military officer named Luis Garcis Meza Tejada became president by force in Bolivia. A number of people disappeared. One of them was a friend of mine. He was a journalist. He was my age and had just recently been married. He was president of the Bolivian Baptist Union. I never forgot that experience.
Jose Caballero was not well known, so he didn't merit international attention. His disappearance was not related in the censored Bolivian press.
That experience lived with me daily, and not only in Bolivia. It seemed to come back to me daily during the five years I served on the Immigration and Refugee Board, between 1989 and 1994.
During those years, in three holiday periods, I travelled to Central America. In Nicaragua, El Salvador and Guatemala I met with United Nations High Commission for Refugees officials. I spent time with human rights organizations. I visited the community development projects of Save the Children Fund of British Columbia. I travelled into a conflict zone in El Salvador and was told by a commander of the FMLN that I was the first foreigner to come in and to have expressed an interest and concern for the situation of children in that area. I came to know something of refugees and their personal situations over the years.
I want to say that I will always count it the privilege of my life to have served on the Immigration and Refugee Board in the difficult area of refugee determination. I hope that in some way I will be able to dedicate the remainder of my years to working for the protection of people who suffer for their convictions because of their race or their group.
To turn to the theme of today, Ms Bernier, the special adviser to the chairperson of the Immigration and Refugee Board, testified before you in February of 1995. She spoke about the background of the guidelines on women refugee claimants facing gender-related persecution.Ms Bernier said the guidelines were introduced because we, the IRB, were faced with the reality that our interpretation of refugee law and interpretation of refugee law elsewhere just didn't fit the reality of persecution against women.
She outlined three main characteristics of persecution against women that made their circumstances such that interpretations of refugee law current in 1993 were inadequate. According to Ms Bernier, women are often persecuted for the activities of someone else. She defined this as ``intermediate persecution''. Second, the nature of persecution suffered by women often involves sexual assault. Third, persecution against women is often committed by private citizens, and the state is unable or unwilling to protect.
She restated her position with the rhetorical question: why did we need to give such guidance to our members? She answered very simply: because we finally understood, as did many others, that the persecution of women was different from that of men, and that difference was not reflected in the application of law.
In my written submissions, which I trust will be part of the record of this committee, I deal in detail with the three points raised by Ms Bernier, and I don't need to go back over them now. I apologize to the francophone members here. I prepared this in my spare time, and quite frankly I was working Monday in my office at 6 a.m. finishing the typing of it. If it's not translated for you, that's not due to any deficiencies of the staff on the Hill; that's due to the deficiencies of the person who is speaking before you and did not have it prepared in time.
I want simply to say about Ms Bernier's points that I'm surprised by them. I'm surprised because Canadian jurisprudence already recognized two of those points, that people can be persecuted because of the activities of a relative or a friend.... We certainly knew that from experience in Bolivia. My wife and I took in children of a Baptist pastor who was being sought by the military government, not because of anything that they had done but because their father had been critical of past military governments and the children had been threatened.
.0915
The Rajudeen decision of the Federal Court in 1984 had set a precedent regarding how the state's ability to protect, or willingness to protect, could be decisive in determining of convention refugee claims. Before the guidelines, lawyers practising before the board could request female board members to hear a case, a female RHO to do the cross-examination, a female interpreter to try to make the giving of testimony as easy as possible. Certainly we all recognize that people who have been tortured or abused do not find the experience of restating what has happened to them to be easy. Evidence in the form of medical, psychological or psychiatric assessments could be given to board members to avoid lengthening periods of questioning.
So I'm surprised by Ms Bernier's statement that these ideas had occurred to the upper echelons of the IRB only in 1993. I think this will be even more surprising to the members of the Refugee Status Advisory Committee, who served Canada between the years of 1978 and 1988, and who felt that they were handling gender-related claims and breaking new ground in the area of gender claims through international consultations then.
To get to the heart of my statement to you, I maintain that the guidelines were primarily a public relations exercise intended to create a positive image of the Immigration and Refugee Board. The Immigration and Refugee Board in 1993 was struggling with its public image. Its mandate is to make good decisions. These decisions will frequently be misunderstood and misrepresented.
I did a review of press clippings on the IRB between 1992 and 1993, and it showed something of the pressure that was on the Immigration and Refugee Board. The present chairman was no doubt in a difficult position and wished, understandably, to be proactive in creating a more positive image of the IRB and its work. The guidelines were a major strategy in that public relations program.
I think it could be argued that the IRB did not need the guidelines to increase members' sensitivity to women refugee claimants. About half the members of the Immigration and Refugee Board were women. Many of them were women from visible minorities. Many of these women had been committed to women's issues in their communities prior to service at the IRB.
I wish to acknowledge that I owe a great deal to my women colleagues in Vancouver, who helped me to understand more about the position and struggles for equality of women in Canada and around the world. There were professional education programs in each office to address specific issues and concerns, including those related to gender-based claims. I think it's important for this committee to know that a report published by the Immigration and Refugee Board about a year prior to the introduction of the guidelines indicated that the acceptance rate for women was significantly higher than that for men from each major source country.
I wish this point to be very clear. Prior to the introduction of the guidelines the acceptance rate for women claimants was substantially higher than the rate of acceptance for males from the same countries. This suggests that, with some exceptions, board members were open to dealing compassionately and fairly with the allegations raised by women refugee claimants.
Most members did not have trouble applying the law to gender-based claims. Were there any who were identified as having problems with gender-based claims, surely they should have been either removed or re-educated. However, the media attention associated with the introduction of the guidelines was effective. The IRB was seen as politically correct, proactive and, in some quarters, as a leader in championing the cause of women claimants. In that respect the guidelines were an outstanding success.
However, I believe the Canadian public might wish to judge the IRB on the quality of decisions issued by members. That is a theme I wish to turn to now.
I submit to you that the second purpose of the guidelines was to increase acceptance rates. The chairperson had stated her intention to test the limits of the convention refugee definition.
.0920
Perhaps no one put things as clearly and as openly as Michael Schelew, a former deputy chair of the board, did at a meeting of professional development coordinators, which I attended in Toronto in the spring of 1994. Mr. Schelew complained that he could not understand negative decisions from some of the major source countries. He stated that the IRB did not have problems with positive decisions, it had problems with negatives; and it would continue to have problems with negatives unless the Canadian public simply got fed up with so many positives and began to make an issue of high acceptance rates.
Of course Mr. Schelew was pragmatically correct. With the exception of criminals and terrorists, a higher acceptance rate means fewer complaints from the interest groups, and fewer negative stories in the media.
I worked in Vancouver, and I wish to direct your attention to that office, although it's only a small part of the IRB, because that's the area with which I'm most familiar. Many complaints were levelled against the Vancouver office of the Immigration and Refugee Board. I wish to say that some of these complaints were justified. Many were not.
Perhaps the majority of complaints involved acceptance rates. The acceptance rate of refugee claims in Vancouver in the period May 1992 to May 1993 was 28%. This was substantially below the average Canadian acceptance rate in the other offices of the IRB; it was substantially higher than convention refugee acceptance rates of all European countries, including the Scandinavian nations.
As an aside, I might say that the Refugee Status Advisory Committee, which handled refugee determination in Canada from 1978 to 1988, had acceptance rates that ranged from 22% to 34%. Only in the year 1988, when RSAC knew that its days were numbered and decided to concentrate on the most meritorious claims, did the acceptance rate rise to 38%. Therefore I submit to you that the acceptance rates in Vancouver were consistent with Canada's historical tradition of refugee acceptance.
By December 1993 acceptance rates in Vancouver had risen to 53%. In case this is seen to be an anomaly, the figure for January 1994 was 47% positive decisions.
However, this pales in comparison with current acceptance rates in Vancouver, after the cleansing of old board members and the appointment of new members in 1994. The acceptance rates in Vancouver for the months December 1994 and January 1995 have climbed to 83% and 84%, respectively.
The Chair: Mr. King, we are here to discuss the gender-related refugee claims and not the IRB. If you'd like to wrap up, perhaps we can get down to the questioning. We do have your brief. I think everything you have said is in your brief.
Mr. King: All right. I will try to wrap up in two minutes. I would simply like to say that I am addressing the gender guidelines because these were part of the process that led to higher acceptance rates, rates that are out of line, or certainly very different from, acceptance rates for convention refugee status in other industrialized countries of the world.
It was part of the process. I've dealt in my brief with other reasons, including the changing role of refugee hearing officers in conducting cross-examinations and the role of advocates in Vancouver.
I would simply like to state on the oral record again that the Vancouver office was under tremendous pressure from immigration advocates. The IRB offered little or no defence to members in that regional office.
.0925
To return to the issue of the day, I would simply like to say that the gender guidelines were a public relations exercise that few people can fault. Indeed, I find it difficult to criticize them, although I'm somewhat uneasy about the definition's elasticity. My greatest concern is that the gender guidelines were part of a process that distracted the board from its principal mandate. The board's principal mandate is to make good decisions based on the consideration of the best possible evidence.
I believe Parliament must hold the board accountable and must insist that it return to the mission of making fair and just decisions based on the application of the convention refugee definition. This is the way to regain public trust. Each and every initiative of the board should be directed to this end.
I wish to end with a personal story. When I was finishing my term of service in Bolivia, a friend approached me. He was a medical doctor. He had been educated in the United States and was a marvellous musician. He had a daughter who was mentally retarded. He and his wife wished to move to an industrialized country, where there would be special programs for the daughter. It's not easy to have a special-needs child in a Third World country.
My friend approached me and asked me what I thought of the idea of him coming to Canada and claiming convention refugee status. He stated that he could invent a story based on participation in a political group and he could say that he had been persecuted by the government. I advised my friend that he could not do this, even though his intentions were honourable for his daughter; that he was a man of faith and he was an honest man, and to achieve something through dishonesty would affect him for the rest of his life.
That's the question I lay before you on the Immigration and Refugee Board. Was the advice that I gave good advice? Are we standing behind the principles of fairness and truth, or do we have a system that is rewarding people who come to Canada with other motives. Was the advice I gave foolishly naïve?
Madam Chair, I'm sorry I have strayed from the topic, but I do think it's related. I would be glad to answer any questions that you or your committee members might have.
The Chair: Thank you very much, Mr. King.
We'll begin with Mrs. Debien, s'il vous plait
[Translation]
Mrs. Desbien (Laval East): Good morning, Mr. King. Welcome to our committee. From what you say and from what I read in your text which I have tried to read as carefully as possible, even if I am not perfectly fluent in English, it seems to me that everything was for the best at IRB before we issued the guidelines.
I understand from your text that the guidelines exist already in the Canadian law. You said that there were female officers, female interpreters who were already taking care of women refugees and that we could submit evidence in the form of medical certificates. Eventually I read somewhere in your text that the officers were well-trained. There does not seem to be any problems, except for what you say about the guidelines being a large public relations exercise to improve the board's image.
In the last few months, we have received many organizations which take care of refugee women and that is not what they were saying. My colleagues can attest to it. In all the reports that we have received, women refugees have great difficulties if for no other reason than the level of information that we give them or the training received by the visa officers, for example, at the entry ports or even here in the different boards.
.0930
You tell me you are surprised by the remarks of Mrs. Bernier, and I am also very surprised by yours. I will not ask you who is right and who is wrong but I would like you to explain the reason of your remarks compared to those that we have already heard and which are quite different from yours? And I would also say that 50% of the population is perhaps worth a public relations exercise.
[English]
Mr. King: Thank you very much for the question. I wish I was as fluent in French as you are in English.
I certainly don't want to say that things were perfect at the IRB. Whatever system for refugee determination Canada has in place, people will struggle with the issues and with the decisions. Not every decision will be a good one, because there will be fallible human beings in those positions.
You mentioned the provisions that did exist. I am saying yes, they did exist. The introduction of the guidelines did not change those provisions. There were concerns that were being acted upon with gender-related claims long before the gender guidelines.
In fact, when the training took place after the guidelines were introduced, because I was in charge of professional development training in Vancouver, I would get the reaction of colleagues. A number of colleagues, including women, said to me, ``What's different now that we have the guidelines?''
I have said it was an enormous public relations strategy, because most of the efforts were placed on communicating the guidelines outside of the board. In fact, when I was involved in the IRB in Vancouver, the training programs were not ones that involved high-level people at the IRB.
The IRB was blessed by having very able and very competent legal advisers, board members and other staff members. Many of us were surprised at the selection of people to do the training on the guidelines, because they would not have ranked high in seniority on that list.
In regard to training of visa officers, that is out of my purview. I can simply comment from my own perspective of refugee determination within hearing rooms at the Immigration and Refugee Board.
You said that you were surprised at my remarks that I was somewhat amazed at Mrs. Bernier's comments. It was simply because the three points raised by Mrs. Bernier surely were points that board members were aware of in 1989, 1990, 1991 and 1992. I've spoken with people from our staff who have said there is nothing new in these three points that they did not have to deal with in their time of service doing refugee determination. I have responded to her statement about something to the effect that we became aware that jurisprudence didn't recognize this, either nationally or internationally.
I am in the awkward position that if you were to ask me about children's rights in international development I would say we can never do enough to create awareness of children's rights and the need for international development, and I would say the same thing about women refugee claimants. There can never be enough sensitivity.
.0935
Members will constantly need to be made aware of that through training programs. But I am saying that the guidelines themselves were directed more to outside of the IRB than to inside the IRB.
Mr. Hanger (Calgary Northeast): Other witnesses have certainly come here and indicated that there has not been this rash or flood, if you will, of gender-related claims. I'm curious to know, from your point of view, what the new gender guidelines have done and why has there not yet been a flood of gender-related claims.
Mr. King: I noticed that when the chairperson gave her comments before this committee she gave a figure of something like 600 gender-based claims. I'm surprised by that figure. It would certainly beg the question of definition. It was our experience in Vancouver that after the introduction of guidelines lawyers used them for virtually every claim that involved a woman as a refugee claimant.
In preparation for coming to give testimony before the standing committee, I spoke to people who are currently involved in the Immigration and Refugee Board and asked them about current experience. They said that when they are going into the hearing room, their expectation is that if the claimant is a woman the guidelines will be used and reference will be made to them. I spoke to lawyers who are currently presenting claims before the board in Vancouver and they said that when they present claims regarding women refugee claimants, they make use of the guidelines.
So I'm not sure about this figure of 600. It's an interesting question. My perception would be that I don't understand it.
Mr. Hanger: What do you think of the proposed new hearing process?
Mr. King: I grew up in the Okanagan Valley of British Columbia. My father was a fruit farmer and we did a lot of cherry-picking. The new hearing process looks to me to be something like someone from a city university, who has never been in the orchard, designing a cherry-picker.
I did a lot of single-member panel hearings in Vancouver, in part because I hated to see claimants and lawyers come to the refugee division for a case and be sent home because somebody was sick and therefore the case couldn't go ahead. So if the lawyer would accept me and the refugee claimant would accept the fact that he or she was going before a single member, I would do them. I don't think anyone in Vancouver did more than I did.
It's not easy to do a single-member hearing, but I'm in favour of the single-member hearings - and I salute the minister for that - because I think, in terms of Canada's economy, that's a good decision. I know there are people on the board who disagree with me.
My problem with the way in which the new hearing system is being set up is that the workload for a member is very heavy. In order to do a case properly, one has to be reading. To do a cross-examination.... I'm not a lawyer, but I've learned something about the law and about skilful cross-examination. If I can use an analogy from the church, when a minister gets up and preaches a good sermon he or she doesn't do it in that way just because he or she has a gift. They do it because of hard work. Someone who does a skilful cross-examination knows the documents, knows the claimant's story, and has prepared to do it.
Under the new system, as I see it, Refugee Board members will be in charge of the cross-examination. That means they'll be not only the decision-makers but also the cross-examiners, if you wish to put it in that way. They'll have to test the credibility of the claim.
.0940
In addition to that, the refugee board member will be expected to have a prehearing conference, presumably with the claimant, the claimant's lawyer, and a refugee hearing officer and will be expected to set out a research agenda for preparation for the hearing.
I'm sure I don't need to tell members of Parliament about the amount of reading that has to be done. Your work must be worse than that of the refugee board. At the refugee board, if you have a piece that doesn't finish on day one and is rescheduled for two months later, you have to go through all the testimony again and be up not only on the documents - but to have reviewed that testimony.
So I wonder how board members are going to be able to do this as well as write reasons. I don't think it's workable.
Ms Clancy (Halifax): Mr. King, my questions are fairly straightforward, and I would appreciate non-anecdotal answers.
First of all, can you define for me the phrase ``systemic discrimination against women''?
Mr. King: Just on the spot, I would define it as women who have to live in a system that severely restricts their human rights.
Ms Clancy: Actually, that is not the definition of systemic discrimination against women, but it's certainly a definition of discrimination.
How long has it been since you were on the board?
Mr. King: I left the board a year ago.
Ms Clancy: A year ago. Could you cite for me some of the primary areas in which women are discriminated against in general, without getting into the refugee - You don't have to, but could you? Could you, say, give me a list of areas in which you think women are probably discriminated against either in this society or in another society? I'm not asking you to do so, but would you feel competent to do so?
Mr. King: I feel confident to mention some.
Ms Clancy: All right. If I can then get a bit more specific, would you care to tell me what you think in this society, in Canada, the major manifestation of discrimination against women is?
Mr. King: May I mention a few?
Ms Clancy: No, I would like one. Pick an area.
Mr. Hanger: Madam Chair, how is this relevant?
Ms Clancy: I'm talking about gender discrimination -
Mr. Hanger: In this country?
Ms Clancy: - in the broad generic sense in every country. In other words, if it's like that in this country, stated by the United Nations to be one of the best countries in the world, what's it going to be like in countries that are refugee producing? That's my train of thought, Mr. Hanger.
May I finish my question, Madam Chair?
The Chair: Mr. Hanger, would you allow Ms Clancy, please. I did allow you.
Ms Clancy: Give me one.
Mr. King: Ms Clancy, I have two daughters. I want my daughters to -
Ms Clancy: I don't want anecdotes. Give me two areas in which you think women are discriminated against; just two, any two.
Mr. King: How about areas of work?
Ms Clancy: That's one. Any others?
Mr. King: Employment equity.
Ms Clancy: All right. Thank you. You have given me two, although they are both in the same -
Mr. King: Sorry. I meant salaries.
Ms Clancy: That's another one. I'm surprised you wouldn't have brought up violence in this country, but there we are. All right.
Mr. King: Violence discrimination?
Ms Clancy: I think violence is an extreme form of discrimination.
The Chair: Could we stick to answers and questions, please, and not debate. Thank you.
Ms Clancy: Anyway, you talked about the vulnerability of refugee women. Would you agree with me that because of those two areas you mentioned and one that I added in, women worldwide can be victims of discrimination, no matter what country they live in?
Mr. King: Absolutely.
Ms Clancy: Okay. Would you therefore not say that in the case of the refugee-producing countries, such as Bosnia, Somalia and some of the South American countries that you have experience in, there could be primary and secondary causes for refugee claims? In other words, the primary claim for a refugee might be that if you step outside your door, whatever your gender, you might get a bullet in sniper fire. That would probably be your primary cause, particularly under the UN guidelines. Is that correct?
Mr. King: Yes.
.0945
Ms Clancy: Okay. Therefore if a country such as Canada initiates guidelines, it may well be that there is a secondary cause as well.
You say you're not a lawyer. Might I say to you that lawyers have a tendency to build their cases on the preponderance of evidence - that there can be both primary and secondary claims. Is that not true?
Mr. King: Yes.
Ms Clancy: Okay. My final comment would be that my sainted mother would tell you,Mr. King, that you have to know a woman very well before you can call her a lady.
Mrs. Terrana (Vancouver East): You said that the gender-related guidelines were a public relations exercise only and that you could apply those guidelines before they were implemented. I would like some examples, because I think there has been a need to introduce these guidelines. As a woman, knowing what women go through in the world, I think there was a need for it. So I would like some examples from you to substantiate what you said about this public relations exercise. It disturbs me to some extent to hear you say that.
Mr. King: I'm saying that because in my opinion, and based on the acceptance rates of the board, which as I indicated earlier were higher for each source country for women refugee claimants, that was a concern. Of course we could have done better, and you will see in my written brief that I indicate that I felt the framework of analysis was very helpful in thinking through claims. But I made positive decisions on women refugee claimants prior to the guidelines and after the guidelines. It didn't seem to me that it changed the jurisprudence under which I, as a board member, had to act.
I guess that is part of my presentation to you here, that the day after the guidelines were introduced, the board was still going about its work very much in the same way, very much citing the same case law.
I'm not sure what else to say. Do you want me to give concrete examples of cases we determined?
Mrs. Terrana: I don't think we have the time.
You were already conscious of what was going on before and you were applying the guidelines before they were brought forward. What about the rest of the board? You said the board was still doing that. Do you have proof of that? Do you think anything has improved since these guidelines were brought forward?
Mr. King: I think we could say the board in general is more cognizant of women refugee claimants and their particular needs. I never intended to say the guidelines were without purpose for the board. But I am saying it was primarily public relations, and I am saying there were already ways to address those through professional development programs, and they were being addressed.
[Translation]
Mrs. Debien: Following what you just said in answer to our questions, I think we have to give two levels of interpretation to your remarks.
When you said that the Canadian jurisprudence already recognizes the different aspects included in the guidelines and that these are in fact confirmation of what already existed in the Canadian jurisprudence and therefore were not really necessary, I think that's one thing. In that sense, certain remarks of Mrs. Hathaway, who came here as a witness some time ago, are quite similar to those remarks, even if I did not agree.
.0950
I think that the other level of interpretation relates to the application of those guidelines and that is where we have a problem. I can understand that the Canadian jurisprudence contains already the main parameters included in the guidelines, except that what we are confronted with here, following the evidence given to us, is a problem of application.
It does not matter that they are already contained in the Canadian jurisprudence or that the new guidelines are a confirmation of what was already in the Canadian jurisprudence, there are two levels of interpretation and that is how I understand the problem.
I do not know if my remarks are in line with those of Mrs. Clancy, among others, with whom I tend to agree. In any case, it is how I understand the problem now. It is a problem of application from what you have told us. That is what I understand and it does not mean that I agree with what you have said. It is a simple remark.
[English]
Mr. King: Yes, I think you've made a good observation.
I have said in my conclusion that I find it hard to criticize the guidelines. If I was this committee, I'd be more worried about acceptance rates and what I have said there. I think you have to ask yourself why Canada is so different from anywhere else in the world.
[Translation]
Mr. Nunez (Bourassa): Thank you for your presentation. It is a very important issue and you have come from Vancouver. You know that about 80% of refugees in the world are women and children. You know the situation in Bolivia. What are your recommendations in order to better protect refugee women in their country?
You know the situation in Bolivia and Central America. Do you have any suggestions?
[English]
Mr. King: Mr. Nunez, thank you for the question. I know you would have very good ideas.
My own ideas are that we should make the refugee system in Canada work so that people who need and deserve protection will get it here.
In terms of our work overseas, organizations that do community development, that emphasize particular education for women, low-income loans for women, human rights for women, make a difference. I hope that we as a nation of people who contribute to these programs stand behind them. That's part of our contribution, as Canada: not only to do the right things when people arrive on our shores, but, as a nation with some wealth and some prestige, to help do the right thing in countries of origin.
[Translation]
Mr. Nunez: These guidelines are not legally binding. Do you think we should also issue, in the present immigration act, specific provisions in order to protect women victims of gender-related persecutions?
[English]
Mr. King: I think from my remarks today I would show my own opinion. That is that the convention definition itself is flexible enough to deal with issues involving gender-related claims and that Canadian jurisprudence is open to those needs. My concern is more about making the board work than about changing the legislation.
Mr. Hanger: You mentioned during your presentation in one of your questions about the issue of credibility that under the new process a member will be listening to and questioning the applicant if that individual so desires.
But there is a question, too, about how much information and how much of an opportunity will be present for them to do just that. Do you see credibility as being an issue in every one of these claims?
.0955
Mr. King: Credibility is not always an issue in a refugee claim when there is good supporting documentation. I'm sorry if I have to refer to examples, but I don't know of any other way to do it.
I recall a case in Vancouver where we simply asked the lawyer to get a document from the teachers' union in El Salvador to show that this person had been a member of the union. Within a day we had the fax back, and the decision was like that.
The difficulty when credibility is an issue is when you don't know the identity of the person in front of you and you have a story. The expedited process, which is simply a paper screening of refugee claimants, is open to abuse because credibility is not tested.
I agree with Ms Bernier. She said that credibility is the number one issue in most refugee hearings. It has to be, because we have the person and we have an account of the person, and we want to protect that person if they need to be protected. The only way to be sure is to ask some searching questions. If the searching questions are not asked, then we don't know about credibility.
Surely the best friend of a refugee is a person who is willing to make hard decisions based on good evidence, because they are protecting the place for refugees five years from now and ten years from now, because they're making sure the system has credibility.
Mr. Hanger: Given the acceptance rate, as high as it is in Canada compared with the rest of the world, the fact that there isn't really an adversarial system that would question any claimant, including those that would make gender claims, we have a major problem.
Mr. King: I believe we have a major problem in the country. I think we'll continue to deal with numbers by imposing visa restrictions and doing things that make it difficult for people to arrive in Canada. That is not the way to do it. The way to do it is to make the system work well in identifying people who need protection.
Mr. Hanger: You haven't really offered any solutions in that regard as to an alternative. We have certainly presented an alternative by putting this whole system back into the bureaucracy. But I just want to get away from that for a moment.
Are the guidelines a crutch for weak members who don't have a grasp of case law and jurisprudence?
Mr. King: I don't know if they need the crutch.
Mr. Hanger: But is that the purpose of the guidelines?
Mr. King: I don't think I can say that was the purpose of them. The way the IRB is structured, virtually anything can serve that purpose, because nobody ever challenges positive decisions in Canada.
When was the last time a positive decision was taken to the Federal Court of Appeal? If we as Canadians want the system to function well, then the people we give landed immigrant status to and citizenship to...is important. It's important that the decisions be good ones. I'd love it if there was a ministerial provision that would review positive as well as negative decisions, so that all decisions could be challenged as to their being good decisions, on law and on review of evidence.
If you want to coast through this system, you just make consistently positive decisions, because the advocates will never complain about you. There never seems to be any effort on the board to deal with offices or with people who have acceptance rates of 80% or 90%. Are all those decisions good ones?
The Chair: Mr. King, I'd like to have your opinion on whether you believe rape or violence in the context of a war situation is really a valid claim for a refugee.
.1000
Mr. King: Yes, I do. I feel that rape is a form of torture and it can be committed for a convention reason. Isn't that what we've seen in Bosnia? Women were raped. Men were castrated.
The Chair: Therefore, as a former member of the IRB, would you have accepted a Bosnian woman's claim that she had been raped and therefore she should be allowed refugee status in this country?
Mr. King: Yes, I would; and I've made decisions on Bosnia claims.
The Chair: Therefore you agree that the guidelines in fact do assist members of the board in terms of facilitating that claim?
Mr. King: But surely refugee board members would have made that decision before the guidelines, too.
Ms Clancy: Not necessarily.
The Chair: My other question is the one Mr. Nunez put to you. Should the guidelines be incorporated into the law? Right now the members are not obliged to follow the guidelines. It's suggested, but they are not obliged.
Mr. King: They answer to the chairperson if they don't. I think there's adequate pressure on -
The Chair: But you don't feel they should be part of the law?
Mr. King: No, I don't feel they should.
May I just return to your other question?
The Chair: Certainly.
Mr. King: There's one thing somewhat difficult with that question. As you've probably been told more times than you would have cared to hear, the refugee definition is forward-looking. If, for instance, I had been a citizen of a country and had been prejudicially treated by the government of that country - persecuted or tortured by that country - but there was a change of circumstances, then that would make it difficult for the decision-maker. They have to decide not simply on what I face, but it's forward-looking, so they would have to determine, if I returned to my country of origin, if I would currently have a well-founded fear of persecution.
Such is the case of Chile, where there were decisions. They might decide that the situation had stabilized and that the fear of persecution was over.
Board members do have the provision that where people have suffered inordinately, to a high degree, they should never be required to return to that country. I think that was included in particular reference to Jewish people who should not have had to return to Germany or eastern Europe, where they had suffered so much. But we have used that provision at the refugee board in cases where there has been a change of circumstances but where we felt that the emotional trauma of returning was so much that Canada should be generous in saying that while there wouldn't be future danger as far as one could see, we wish to mitigate that person's personal circumstances.
The Chair: Mr. King, I'd like to thank you very much for your comments on the IRB and the gender-related refugee claims. I'm happy to hear from you that in fact Canada continues to be a very generous country and should continue that policy. Thank you very much.
Mr. King: I apologize for my long-winded answers.
The Chair: No, thank you.
Members, Mr. Mayfield had in fact put forth a number of motions we were to consider today, but because he is not present, we're going to delay the adoption of those motions. He gave proper notice and so forth, but we will delay.
Ms Clancy: We're not going to do it now?
The Chair: No, he's not here.
The meeting stands adjourned.