[Recorded by Electronic Apparatus]
Tuesday, May 9, 1995
.0909 
[English]
The Chair: Good morning and welcome, everyone. We'll begin. Pursuant to Standing Order 108(2) we're examining gender-based refugee claims.
We are honoured to have with us today members from the Canadian Bar Association. We have Ms Joan Bercovitch, who is the senior director of Legal and Governmental Affairs; and Mr. David Matas, who is the secretary treasurer of the Immigration Law Section.
Welcome. We'll begin when you're ready.
Ms Joan Bercovitch (Senior Director, Legal and Governmental Affairs, Canadian Bar Association): I should say that we're expecting Ms Catherine Sas as well, who's coming in from Vancouver. We'll begin with Mr. Matas's presentation, and hopefully she'll join us in progress.
The Chair: Certainly.
[Translation]
Ms Bercovitch: As you know, the Canadian Bar Association represents about 35,000 jurists across Canada.
[English]
The association represents 36,000 lawyers, notaries, judges - members of the legal profession. Central to the mandate of the Bar Association is improvement in the law and in the administration of justice. Our submissions to you this morning are consistent with that objective.
.0910
The submission will be presented by Ms Catherine Sas and Mr. David Matas, who both practise in the area of immigration law. Catherine Sas is a lawyer in private practice in Vancouver, B.C. She's co-vice-chair of the immigration law section of the CBA. She'll speak to you about the application of the gender guidelines.
David Matas is a lawyer in private practice in Winnipeg. He's a member of the executive of the immigration law section. He will speak about refugees and the rule of law. He's also the author of this book, called Closing the Doors: The Failure of Refugee Protection.
I'd ask them to present.
The Chair: Thank you.
Ms Sas, welcome.
Ms Catherine Ann Sas (Vice-Chair, Immigration Law Section (National), Canadian Bar Association): Good morning.
I have prepared the first part of the presentation in the printed materials that have been provided. The focus of what I am discussing is the application of the gender guidelines, primarily in Canada. I will leave the abroad perspective to Mr. Matas, who has more experience in that.
To prepare for coming before you this morning, I reviewed the situation before the board in considering cases. The material I was provided with by the legal department of the Immigration and Refugee Board, which is provided at the ``Case Summaries'' tab of your background materials, seems to indicate that the board considers these cases on a fairly even basis. That is not my experience in the practice and it is not the experience of my colleagues. To that end, I have tried to provide you with cases that show what is, in my opinion, a lack of sensitivity to the issue of gender in considering the refugee definition.
The guidelines that have been presented by the chairperson, Ms Mawani, are consistent with the development of the law by the federal court. I have provided you with a summary of the cases on that topic as well.
I might point out that I have omitted one significant case, and that is a case from the Supreme Court of Canada, which also recognizes the issue of gender persecution and the fact that women facing persecution can constitute a particular social group. That is the Ward decision, which comes from the Supreme Court of Canada, an even higher authority.
I watched with great interest yesterday evening the celebrations that took place across Canada for V-E Day and the recognition that Canadians are a peace-loving country and promote peace. It is interesting, therefore, to practise in this field and see the perception or the application of our principles in the refugee determination process.
In my experience there is quite a distinction between the principles Canadians hold near and dear to their hearts and how we approach the treatment of refugees. While Canada is a peace-loving country and goes to great lengths to promote peace, it is somewhat ironic that while Canada has sent peacekeeping forces to Somalia and to Yugoslavia, we do not necessarily recognize that people are refugees from these countries. Those matters have to be addressed in the context of considering gender-based claims.
One of the difficulties that arise in considering gender-based claims is whether we are broadening the definition too much, whether we will be allowing for too many refugee claimants to be successful. In order to assess those kinds of arguments, I believe we have to go to the very root of our refugee determination process and decide what it is Canadians want to do. Are we going to be a humanitarian and compassionate country and respect those kinds of traditions and accept refugees into our country, or are we not going to do that?
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Whatever decision we make, we should be honest and clear about that decision so that we are not encouraging people to come to Canada thinking they have the hope of being accepted here, and then to come from countries like Somalia or Yugoslavia or Rwanda or El Salvador, places that are clearly recognized -
The Chair: I'll interrupt you here. Could we please stick to the topic at question which is the gender-based refugee claim?
Ms Sas: The point I'm trying to make is that if we are going to accept gender-based claims, we have to accept them on the same basis that we accept any other claim. The consideration is whether or not these people are deserving of protection. We should be honest and forthright and clear about what our purpose is.
The Chair: Would you like to continue, Mr. Matas?
Mr. David Matas (Secretary Treasurer, Immigration Law Section (National), Canadian Bar Association): Yes. I'm going to talk very briefly about refugees and the rule of law in the context of the gender guidelines.
The problem in the application of the gender guidelines as we see them is that they are entangled with the larger problems of inconsistency of decision-making within the board, between the board and visa offices overseas, and between Canada and other countries.
The question of who is a refugee and when the gender guidelines apply is a question with wildly different answers. We've had differences in acceptance rates within the board from year to year, from 55% to 76%. We've had regional variations within Canada of dramatic natures. We've had board members with widely different acceptance rates. We've had a dramatic difference between what visa posts overseas do and what the board does.
Within the United States there are similar variations between 55% and 15%. In Europe we see differences between 1.8% and 41%, and in Europe they divide up the whole refugee definition into pieces; they have quasi-refugee status of different types in different countries. In Sweden, although only 5% are recognized as refugees, 89% are recognized in various types of refugee status.
Some of these variations can be explained by differences in populations, but most of them cannot. For most of them the difference in explanation is a difference in who decides. Those sympathetic generate far different rates of acceptance than do cynics.
This variation in approach means there is no rule of law, that instead we have the rule of men and women, the men and women who decide each refugee case. The system of administration of justice in this area has failed and we need institutional changes to deal with it.
Now, the guidelines in themselves are part of the answer, and we commend the committee for looking at them. Training is also an answer. Professionalized appointments, which the government has embarked upon with an advisory committee, is an answer. An attempt to achieve consistency between the visa offices and the posts in Canada is an answer, and again the government is trying to achieve that.
But in addition, there are four specific suggestions we would make of institutional changes that we believe would help to achieve consistency.
One is that refugee determinations at visa posts abroad be made by the refugee division of the Immigration and Refugee Board. We point out that there is already expert decision-making at visa posts abroad for the purpose of medical determinations, which are not done by visa officers, and for the purpose of security clearance, which is done by the Canadian Security Intelligence Service. We suggest it would also make sense to have the refugee determinations done by a specialized independent decision-maker.
Secondly, there should be an appeal from decisions of the refugee division of the board that would allow for the possibility of oral hearings with leave. Right now there's judicial review, but judicial review is too broad an instrument to generate consistency in decisions that we need.
Thirdly, we say that there should be an international compliance assessment mechanism for the refugee convention. Bizarre as it seems, there's no way internationally to determine whether or not the refugee definition is being applied correctly or incorrectly. There is a number of detailed recommendations about how we can remedy that situation. Obviously Canada cannot change alone what the United Nations will do, but Canada can exercise some leadership and initiate some proposals. We have some proposals to suggest.
Finally, we believe the proposed United States-Canada memorandum of understanding for allocation or determination of refugee claims should include within it minimum standards of procedural fairness. It should include the gender guidelines and it should include the possibility of a joint appeal tribunal also to generate consistency.
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We believe that with these changes there would be an institutional framework in place that would allow for consistent application of the gender guidelines in the refugee definition generally.
Thanks.
The Chair: Thank you, Mr. Matas. Thank you, Ms Sas, also.
Would you like to add anything, Ms Bercovitch?
Ms Bercovitch: No, thank you.
The Chair: Thank you very much for your presentation. We'll begin
[Translation]
with Mr. Nunez.
Mr. Nunez (Bourassa): Thank you, Mr. Matas, Ms Sas and Ms Bercovitch.
I always read with a great deal of attention briefs presented by the Canadian Bar. They are usually well fleshed out, well prepared and very authoritative. Not only do you argue principles of law, you also sometimes review the case law and the practice. I appreciate that.
I was surprised by your position. You don't want to change the definition of a ``refugee'', whether it be in the Geneva Convention or in the legislation. Some witnesses have told us that it would be the wrong time to make such a change. If we look to the longer term, don't you think that one day we would have to redefine the ``refugee'' concept to include gender?
When we started writing definitions for the Charter of Rights, we hadn't thought about some grounds for discrimination, like sexual orientation. We thought that was included in gender. Now, the Charter definition is very clear. I think that it's good because guidelines can change depending on whether the chairman of the commission is more or less far-sighted, whether he is more or less conservative, whereas the legislation and the convention are more permanent. What do you think of that?
[English]
Ms Sas: Thank you for raising this point. Yes, it is the bar's position that expanding the definition to include gender would be a good idea; however, we are looking to an international process as opposed to a process beginning here at home.
To that end, I believe the first recommendation made in my paper is that the application of the guideline should be legislated into the Immigration Act. In our position, legislating the guideline would in effect modify the application of the definition for the process in Canada.
[Translation]
Mr. Nunez: Ok. Now, I understand your position better.
Regarding the IRB guidelines, what do you think about their impact? Is it positive for women or are there still deficiencies? Can you tell us what is your experience regarding the application of these guidelines? Some witnesses tell us that the guidelines are good, but that they are not correctly applied by the board members. In practice, their application leaves much to be desired. What is your experience?
[English]
Mr. Matas: We each have our own experience, we can both say it, but I expect it's much the same, that the application is uneven. In some cases with some board members it is important, and it has had a consciousness-raising effect.
The definition is always there and the definition hasn't changed. Simply telling board members that this is an aspect you must consider allows them to consider something or brings to their attention something they might have overlooked before.
It's not just the board members, it's also counsel as well. Sometimes counsel just doesn't think that this is relevant to the record - or historically before the guidelines were in place, didn't think it was relevant to the presentation of the case they had to put to the board, and so these matters never came out even though the facts were there. They simply were never presented to the board.
.0925
So the value of these guidelines is that they encourage everybody to think about these things and focus in on them. But the problem is that because they're guidelines they sometimes can be ignored or they can be overlooked or they can be de-emphasized because they don't have the status of law.
[Translation]
Mr. Nunez: On the issue of the $975 immigration tax, do you think that it will encourage...
The Chair: Mr. Nunez, I don't think that that is the topic of our discussion.
Mr. Nunez: It is relevant. I would like to know if, in your experience, an additional tax will benefit women refugee claimants or whether it will hurt them.
[English]
The Chair: Mr. Nunez, I'm going to rule it out of order. Thank you.
Mr. Mayfield.
[Translation]
Mr. Nunez: I am sorry, Madam Chair. You are being very dictatorial and I do not accept your ruling, because it is very relevant. I will protest here and in the House, because this is not the first time that you do this to me.
The Chair: Mr. Nunez, that has no bearing on the topic we are discussing today.
Mr. Nunez: Yes, because I'm asking whether that will encourage or discourage refugees from coming here.
[English]
The Chair: Mr. Mayfield, would you like to ask a question?
[Translation]
Mr. Nunez: This concerns the right of all committee members. I will no longer accept this. Each time you say that I am violating the Standing Orders, I will protest.
The Chair: Mr. Nunez, you have the right to protest, as I've already told you. Ask the members of the committee if they agree. We can vote. That is your right.
Mr. Nunez: So, why do you immediately decree that it is not relevant?
The Chair: Mr. Nunez, do you want to put the question to all the members of all the committee? They can vote if you wish.
Mr. Nunez: Yes.
[English]
The Chair: Okay, we will vote on my decision.
Members have heard the decision from which the hon. member has appealed. The question is the following: shall the decision of the chair be sustained?
It's a tie.
Mr. Assadourian (Don Valley North): It can't be tied.
The Chair: That's what it is.
I will ask the question again, then. We'll try one more time.
Members have heard the decision that I've ruled on the -
[Translation]
Mrs. Debien (Laval East): Excuse me, Madam Chair. It might be a good idea for you to remind us, before we vote, of the nature of the question and of the reasons for your decision.
The Chair: Mr. Nunez asked a question to the witnesses.
[English]
Mr. Nunez, I'll do it in English.
Mr. Nunez asked the question to the witnesses on the $975 landing fee, which I consider to be out of order in terms of the subject that we are treating today, which is the guidelines and the gender-related refugee claims.
Members have heard my decision. I ruled him out of order. I'll ask once more for the vote, since it was a tie. I obviously can't vote, as the chair, on my own decision.
Shall the decision of the chair be sustained? We're still tied.
Since the decision has not been overruled, I declare the decision sustained.
We shall continue. Mr. Mayfield.
Mr. Mayfield (Cariboo - Chilcotin): Good morning.
I find your brief quite interesting. I only wish I had time to study it and to understand what's in it before we begin this conversation here. So perhaps you'll bear with me just a bit.
I believe it begins by saying this is a submission by the immigration law section. Does this have any weight with the whole Canadian Bar Association, or is this just with your section?
Ms Bercovitch: The section is comprised of immigration lawyers from across the country. The section prepares the brief and develops the policy, has it approved through its executive, and then it goes through quite a rigorous approval process through the Canadian Bar Association, through our legislation and law reform committee, which has members from different areas of practice across the country who work with the broad policy area of the brief, and then to our national executive.
Mr. Mayfield: So this can be accepted as a statement by the Canadian Bar Association?
.0930
Ms Bercovitch: It's a statement of the immigration law section. If it were to be accepted as a Canadian Bar Association policy position at large, then it would have had to go through our national council, which meets twice a year. So when we present submissions to House committees, we present them as the policy of this section, but it is under the aegis of the CBA.
Mr. Mayfield: So this is the approval of the immigration law section?
Ms Bercovitch: Yes.
Mr. Mayfield: Some of the stuff in here I find quite encouraging, but I'd like to begin by asking how you see the gender guidelines in the whole refugee process being used now.
Ms Sas: I believe my experience is consistent with Mr. Matas's experiences, that it is on a case-by-case basis. Where the guidelines are followed and applied, generally they are done fairly well. The difficulty arises in situations where the guidelines are not even considered.
In the case materials I have provided you with two examples where clearly these cases were presented solely on an issue dealing with the guidelines, and no reference to the guidelines was even made. The difficulty is that some board members consider the guidelines, some members reject them, and some members apply them.
Applying them does not necessarily mean the case will be successful. You can apply them and have a negative case as well. Unfortunately, there are cases where they are not even considered.
Mr. Mayfield: Would these guidelines perhaps be used by some as offering the client, and by extension the lawyer representing the client, a second chance at obtaining refugee status if they fail the first time?
Ms Sas: No. It is their only chance. If you are unable to otherwise qualify on one of the five grounds, you can add this as a ground if you wish. Even when you consider the other grounds, you can make a case with all six or all five at the same time. It's just one issue to be considered. It is not an additional chance.
Mr. Matas: There is a procedural issue here. Technically, it's impossible to make two claims. If you've already made a claim and been refused, then you're ineligible to make a second claim. There are some exceptions, such as if you've been out of the country for 90 days or if you won at the Federal Court and they sent it back. But the general rule is that if you make a claim and you lose, you can't make a second claim.
Mr. Mayfield: I'm wondering what difference has been made since these guidelines came into effect. Have you noticed the difference in the acceptance or the failure rates? Have there been more or fewer claimants accepted as refugees? Has it made any difference in the number of appeals? What effect did the guidelines have?
Mr. Matas: The numbers are too small to affect the rates. In terms of overall claims, we're dealing with thousands, but in terms of the guidelines cases, we're dealing with hundreds. You can't affect the rates given the numbers that are involved.
To my mind, the guidelines have had the effect that I mentioned before, one of consciousness-raising, of marshalling evidence and issues to the attention of the board and counsel and claimants that they just might not have thought of as falling within the purview of the refugee definition before.
Ms Sas: I did try to obtain the statistics you are asking for from the Immigration and Refugee Board for today, and I was unable to get those statistics. Often the kinds of statistics you would imagine might be generated aren't, and this committee may be in a better position to get that information directly from the board.
However, in my own practice and in my review of this topic with my colleagues, there has not been a great increase of claims on this ground. I noted in reviewing the testimony of a person who appeared before this committee, Mr. Bauer, that he was expressing concern that now there were hordes and hordes of people coming forward on this ground. That is not the case. I probably have about 25 cases a year, and in the last 2 years I have had 3 cases that have raised the issue of gender.
The Chair: Thank you, Mr. Mayfield.
Mr. Mayfield: Am I finished?
The Chair: Yes. Your five minutes is up. We'll be back.
Ms Clancy.
Ms Clancy (Halifax): Thank you. Thank you for your presentation. Effectively, with regard to gender-based refugee claims, aren't we really saying - and I'm delighted, Ms Sas, that you made the point that the floodgates have not opened by any manner or means - that the vast majority of women who could benefit by these claims are not even going to make it to our shores? Indeed, they're not going to make the selection process in refugee camps either. Isn't that true?
.0935
Ms Sas: I believe that's a fair statement.
Ms Clancy: So really our major problem on gender-based discrimination in the whole field of refugee acceptance is access, before we even get to anything as formalized as the IRB.
Mr. Matas: In terms of access, that's why we feel it's important that we have these guidelines applying and we have an independent specialized tribunal applying them to visa posts abroad, because it's easier to get access to visa posts abroad than to Canada. There's a tremendous variation right now. We have nothing like what happens in Canada at visa posts abroad. That's a problem for women and for everybody.
Ms Clancy: With regard to the whole area, are you aware of the unusual responses? I know you think we've got a long way to go, and I take that under advisement. Are you aware, for example, of the responses of the European Community and some other groups at the pre-Beijing conference in New York in the last couple of weeks? You're not? Talk to me afterwards.
Ms Sas: I'm not.
Mr. Matas: I've brought something here called Guidelines on the Protection of Refugee Women, put out by the United Nations High Commission for Refugees. It's not as good as the Canadian one, but it's not bad.
Ms Clancy: It's not bad, but keep watching. Beijing is going to be a very interesting study.
In the beginning I was sitting here getting mad, but then I realized that it's okay, it's the Canadian Bar Association, calm down. Then I realized you're okay at the end.
My concern - she said with her usual patronizing response - is that we've heard former members of the IRB talk about the fact that there's absolutely no need on earth to have guidelines because everybody on the IRB, past, present and future, understands this and is totally sensitive to it. I have a somewhat cynical response to that.
My second concern, however, is about what the UNHCR tells us, and in light of what I've been reading from the pre-Beijing conference. The European Community, for example, refuse to use the word ``gender''. They want to talk about violence based on domesticity. They want to use words that I consider to be drycleaned and sanitized as opposed to the words that actually mean it.
The UNHCR tells us that if we were to put the actual gender-based discrimination words - which is my knee-jerk reaction - into their own terminology, then we would have a huge and unfavourable response.
What's your feeling about that? How do we deal with it?
Mr. Matas: Obviously there's a battle out there to be fought, but I believe it's a battle that can be won, and I don't think Canada should be shy about fighting it.
I think of the Vienna World Conference on Human Rights and the declaration that came out of that. The strongest component of that declaration was the declaration on women's rights, and that was as a result of a tremendous international, organized, coordinated lobbying by women's groups.
I believe this area is similar. Canada has actually tried to get the gender guidelines accepted at the executive committee at the United Nations High Commission for Refugees, but basically didn't get anywhere and has withdrawn from the whole effort. I think that's a mistake.
Ms Clancy: I disagree that they've withdrawn from the whole effort, but we can discuss that later.
Mr. Matas: All right.
Ms Clancy: I do not believe we've withdrawn from the whole effort, and I think sometimes one backs off from a battle to regroup and fight again. Indeed, NGOs at the United Nations meeting were spending a lot of time attacking the position of the Canadian government, Canadian NGOs and other things, which made it difficult for the people who were there.
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What I'm asking you is what's your suggestion for fighting this battle when it doesn't appear that the Americans are prepared to come behind us on this until they have their own guidelines in place, which is going to be post-Beijing. It does not appear that the UN is keen to have the terminology we're talking about included in their own documentation, and it also appears that the European Community, which you would think would be somewhat supportive, is also against the words ``gender-based discrimination''. Where do we go for allies on this in the international field?
Mr. Matas: I think one thing we can use is these refugee determination allocation agreements that are floating around. Right now, as we mentioned in the brief, we're in active negotiations with the United States about a refugee determination allocation agreement. We should see to it that gender guidelines are part of that agreement. It may be we'll have to wait until the Americans articulate theirs, but here's an ongoing bargaining process where both sides are interested in getting an agreement and it could be incorporated into that.
I think we have to pick up allies and I also think - What was effective in Vienna at the world conference was the coordination of friendly governments with the non-governmental community. I think it's important that the non-governmental community mobilize on this effort. That's our responsibility, that's not yours.
I think it's important that the governmental community that is sympathetic coordinate its effort with the non-governmental community, and to a certain extent Canada has been doing that and there's been contact. I think more of that cooperation could be utilized. We in the non-governmental community have allies everywhere, in every country, who can in turn deal with their own governments. I think the Canadian government should take advantage of that network much more than it has done.
[Translation]
Mrs. Debien: Good morning. I would like to ask you a question about applying the guidelines to select refugees abroad. You said that here in Canada, there were serious problems in applying the guidelines. Many agencies that have appeared have said that visa officers abroad do not always follow the spirit and the letter of the guidelines.
Furthermore, you suggest, amongst four proposals you mentioned earlier on, that we give the Refugee Division - In fact, I didn't really get this first proposal that would give our posts abroad a different status, that would call upon specialists. You mentioned this very quickly and unfortunately, I have not had the pleasure of reading your brief. I would therefore appreciate it if you would elaborate somewhat on this particular proposal.
Mr. Matas: Yes.
[English]
I'd be pleased to do so.
[Translation]
Mrs. Debien: Thank you.
[English]
Mr. Matas: These officers are really in an impossible position because they're understaffed, overworked, overwhelmed, and they're basically dealing with economic immigration. That's their training and that's the bulk of the work. They apply the point system. They try to make an assessment as to whether somebody's likely to successfully establish in Canada.
Dealing with the refugee definition is very specialized in terms of law. It's specialized in terms of country condition. A visa officer is always dealing with country conditions other than the country in which he is stationed. He doesn't have the documentation centre and doesn't have the specialized knowledge of the refugee definition. At one time they were given two hours of training, now they're given, I think, two days of training; it's just not enough.
One of the reasons we established an independent specialized tribunal in Canada is that the old model where we had people doing it part-time as part of the Refugee Status Advisory Committee was just not working. They were confusing the refugee decision with whether or not people would make good immigrants, which is a different issue. We need somebody who's independent and specialized.
The obvious candidate would be the refugee division, because they're already there and they're independent and specialized. It's not that different from, as I was saying, what we do with security or medical clearance, which right now - it used to be Health and Welfare - is in the Department of Immigration. But they're doctors, they're not visa officers. They decide if the person is sick or healthy. You don't ask a visa officer to decide whether somebody is sick or healthy.
I would say the same thing should happen with visa office decisions on whether or not somebody's a refugee. The actual refugee determination should be done by the refugee division.
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I assume the questions that arise centre around the mechanics: what would the procedure be; how would it be accessed? Those are questions of procedural detail and they can be worked out. We don't really flesh them out here because what we're trying to do is establish the principle.
Through the Canadian Council for Refugees, I was involved in a report called The Report of the Task Force on Overseas Protection. It proposes a whole model on how the system would work with decisions overseas. The bar hasn't endorsed the whole procedure, but if the committee wants to get an idea of how the system would look with the refugee division operating overseas, it's in that report.
For the purposes of the bar, what we're concerned about is the principle, about getting people who are specialized and independent making these decisions, rather than jack-of-all-trades visa officers.
[Translation]
Mr. Nunez: You have looked at how the guidelines are applied here in Canada. You have just described your experience and knowledge of how the selection process of women refugees is done outside of Canada.
Now with regard to the review of the IRB decisions, the minister can overturn a decision on humanitarian grounds. Sometimes many women come before the minister. I have myself submitted claims by women victims of family violence. In some cases, the minister rejects the claims, in others he recognizes them. There doesn't seem to be any common thread. How do you see the application of these guidelines at this stage of the review by the minister on humanitarian grounds?
[English]
Ms Sas: I've addressed that in my paper, Mr. Nunez. I believe it follows logically that the guidelines, or a guideline-type analysis, should be applied. I've also referred to the speech of Mr. Marchi on this point, one in which he recognized or stated that it is his intention that this kind of approach shall be taken. However, if you take a look at the case to which I have referred you, the case of Ms Gill, you can see that such an analysis is not happening - and this is a very, very recent decision; I believe it was reached last month or the month before.
The bar supports Mr. Marchi's initiative that the application of the guidelines, or that type of analysis, should be forthcoming at the humanitarian and compassionate review stage. Unfortunately, it appears that it has not been implemented, that Mr. Marchi's directives have not taken hold yet.
Mr. Mayfield: On page 3 of your brief, you mention that the case summaries indicate a widespread disparity in the analysis of issues. Some conclude that a certain kind of treatment is persecution, while the same kind of treatment in another case is not. On similar fact situations, some conclude that state protection is available, etc.
I was wondering if you could please go on and elaborate on that a little bit.
Ms Sas: Okay. The easiest way to see that, of course, is to take the time to read all the little summaries, which is what I reviewed. For example, you'll see that there may be two cases from China that seem to have almost identical facts. There are two particular cases that I believe deal with sexual harassment from an official in China. In one case, it is considered to be persecution and there is no state protection. In the other case, it is not persecution and state protection is not necessary.
These are summaries. We do not have all the material before us, but the kind of problem is consistent with what comes up in general practice. You have cases that are identical, or that are very similar in terms of their facts, yet there is a completely different result. This is what I was referring to.
Mr. Mayfield: I was interested in Ms Clancy's statement that sometimes the most able benefit from the protection Canada offers to refugees. I suppose this means that those who are least able can't even make it to the front of the line to be known. In my mind, this is a serious problem. It's very much how I see the situation myself.
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One of my concerns about the unfairness in our whole process is that those who have the means to stand at the front of the line, hire a lawyer, and have good representation have -
Ms Clancy: That wasn't what I meant. If I could just clarify, I meant actual access.
Mr. Mayfield: That's true. The sick lying in the dust don't have nearly the chance of those who are able to run to the front.
Ms Clancy: The women locked in the closet don't, either.
The Chair: Ms Clancy, please.
Mr. Mayfield, would you please address the witness on a question. Thank you.
Mr. Mayfield: Fair enough. Do you feel that women refugees would be better served by focusing on overseas claims rather than the inland claims that are made? Is that what you're suggesting? I'm not sure about that.
Ms Sas: I think the issue of access you're raising - I believe Mr. Matas would like to say something about this too - is consistent with the whole approach to refugees. Yes, the people who make it to Canada have a better chance of having their cases fairly considered, particularly if you take into account what Mr. Matas has said about the results abroad. But I think that probably goes beyond the scope of what we are considering here. The whole refugee determination process would have to be taken into consideration. Are we going to shift our efforts from an in-Canada consideration to an overseas consideration?
I'm sure Mr. Matas would want to respond.
Mr. Matas: We obviously have a problem, because we have these barriers to access and they create all sorts of problems. One of these systemic problems impacts on gender as well as across the board. The problem is that our barriers to access are undifferentiated. The barriers are not based on whether somebody's a refugee or not a refugee. The barriers are based on totally irrelevant criteria from the refugee's perspective, such as whether he or she has proper documentation. Some people in desperate need may have the proper documentation and some may not. Some people in little need may have the proper documentation. There's an impact by gender.
The point we're trying to make here is that there should be consistency in decision-making no matter where the decision is made. On a personal level I don't like the whole access system, but I think what the access system should be is getting beyond the committee's ambit. Whatever access system we have, whether it's the same or different, it shouldn't make a difference where you are in terms of how the refugee definition is being applied, and now it does.
Mr. Mayfield: Would you agree or disagree that perhaps the UNHCR would be a better vehicle for determining refugee status than the way it's being done now?
Mr. Matas: There is a problem with the UN determining refugee status. One is that the UNHCR and all other UN agencies are extremely under-funded. Once you put something administrative or practical on the UN it becomes very difficult for it to deliver because it normally just doesn't have the funds to do it. That's one problem.
Another problem is that the UNHCR has many functions and it doesn't deal only with the interpretation of the refugee definition. Some of its functions are at cross purposes with the refugee definition. It needs access to camps and funding from governments. It's intergovernmental and it's not as independent from governments as something like the Immigration and Refugee Board.
A third problem is that the UNHCR in its own operation doesn't apply only the refugee definition; it applies its mandate, and its mandate is broader than the refugee definition. There are some people who come within the scope of its mandate who do not come within the scope of the definition. It would be problematic for the UNHCR to make refugee determinations when in effect it would be cutting its mandate group in two.
On the whole, the Immigration and Refugee Board model with an independent and specialized national decision-maker is a better model. The problem is we need some sort of institutionalized set-up to get consistency of decision-making, so when you do get a board like that generating what I would say on the whole are good and fair decisions, there's consistency with other components of the system worldwide.
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Mr. Assadourian: My question is to Catherine Sas of the immigration law section. It relates to the international conference, which is still taking place in Cairo, where a Canadian representative put forward a position that rape by a spouse should be accepted as a form of human rights violation. That was then rejected, I believe, by Pakistan, Iran and Egypt. What impact would this decision have on our policy here?
Secondly, how do you balance the cultural differences of some countries...? Apparently in those three countries in this case, and perhaps in other countries, rape by a spouse is the norm or okay. How do you balance that with our position here in Canada?
Ms Sas: First, our position in Canada is that rape is a crime no matter who it's committed by. If you accept that principle, then the issue is whether there is protection available for someone.
With respect to cultural norms, the kind of analysis that is being taken by the Federal Court and by the Supreme Court of Canada is whether the persecution complained of is a contravention of a recognized international human right. If it is, then it is deserving of protection. In my analysis a rape would be a contravention of an international human right and therefore deserving of the protection of the guidelines.
The problem of what other countries do is always a difficult one. I still think the guidelines or that kind of analysis would apply.
Mr. Assadourian: Would the lack of unanimous approval of our position in that conference in Cairo affect the international situation when they have persecution based on gender?
Ms Sas: I'm going to defer to Mr. Matas on this because he has a greater understanding of Canada's international role than I do. Perhaps he can comment.
Mr. Matas: The answer is no. If a country refuses to accept a human right or a violation to a human right, that doesn't change the right; it just affects the implementation of the right. So I would say that obviously if somebody is trying to get protection in Egypt under the refugee convention for that sort of violation they are going to have a hard time. That doesn't change and shouldn't change the application of the refugee definition in Canada.
Mrs. Terrana (Vancouver East): Thank you for coming.
Again, I think I would want to follow a little bit on what Madame Debien was saying. We had some people making presentations here who said we had the best guidelines on gender-based refugee claims. Do you agree with that?
Mr. Matas: Yes, I do agree with that. I also say there's room for improvement.
Mrs. Terrana: There's room for improvement in everything, unfortunately. I'm not perfect either.
Having said that, you also talked about the specialized decision-maker. When we talk about the world, and we know how big it is and the differences there are in the various countries.... When you talk about the specialized decision-maker, what do you mean? How would you implement that? Where would you find this person in all of these countries?
Mr. Matas: What I mean is somebody we have right now, a member of the refugee division of the Immigration and Refugee Board. They are specialized in the sense that they do only refugee claims, specialize in refugee claims. I think to say that it should be specialized by country of origin is asking too much indeed. I think even within the board they don't do that, although there's a bit of it in an informal way. It's not formally organized.
Obviously, if it can be done informally by country of origin, it should be. I have in mind people who do nothing else but that and have a substantial background in training in that area.
Mrs. Terrana: So it would be a moving person?
Mr. Matas: Not necessarily, because in some countries there is a tremendous amount of refugee claims at the visa posts. If somebody's in Hong Kong, in Turkey, in Damascus or in some of these places where we're actually bringing in most of our refugees from, they don't have to move around; they could just stay there.
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Mrs. Terrana: The last thing I want to ask you has to do with consistency. What concerns me is what was said, that the guidelines have not applied consistently. I don't understand that, because if the people who sit on the IRB have been trained to that effect....
Do you notice a lot of inconsistency among decisions on this particular subject?
Ms Sas: I share your lack of understanding on this point, particularly since when the guidelines were presented Ms Mawani clearly directed that they were to be followed and that when they were to be departed from, a clear explanation should be given.
There are many possible reasons for this inconsistency in decision-making. We've suggested that as a remedy to this the guidelines should be legislated, or alternatively that more extensive training should be given to board members that the guidelines should be applied and followed.
The Chair: Mr. Dromisky, did you have a question?
Mr. Dromisky (Thunder Bay - Atikokan): I have some questions.
The Chair: Some questions. Okay, I'll come back, then. Thank you.
[Translation]
Mr. Nunez: My question deals with the women at risk programs that have been implemented by Canada, particularly in the former Yugoslavia. How have those programs worked? Have they been effective? What problems have been encountered in implementing those programs specifically geared to women at risk?
[English]
Mr. Matas: The women at risk program has not functioned at all up to expectations. It really hasn't functioned as a ``women at risk'' program. It's functioned as a ``cases in difficulty of successful resettlement'' program.
Our visa office system overseas is so slow and cumbersome that any woman who's truly at risk has long since suffered the risk by the time a decision is made. If we look at the cases that have come through, the program has been used to resettle women who, in the opinion of the visa officer, would have difficulty successfully establishing with just government assistance alone or private sponsorship alone under the regular programs. The result is that the program has failed in terms of its original intention.
This is partly a problem of the application of the gender guidelines of the visa posts abroad, but it's partly a problem of the cumbersome nature of the way the visa offices work, with the need to get medical and security clearances before somebody enters. In other countries that operate women at risk programs, which is really a UN program Canada participates in, they will do medicals and security upon entry and bring in people right away, which Canada does not.
I don't know if this committee can get into the women at risk program. I know there's a lot of consultation going on within the government to try to make it functional. If you do get into it, you will find it's basically been very problematic and needs to be restructured.
Mr. Mayfield: If we have a limited number of openings of however many refugees we determine we're able to take, is there any way or is there any need to create some kind of balance between inland and foreign refugee claimants?
Mr. Matas: A balance?
The Chair: I'll interrupt you for a minute. There might be a vote. That's why we're looking at the light, which is still going on.
Please go ahead, Mr. Matas.
Mr. Matas: I would say that in terms of international human rights principles, there's no need to maintain a balance. If somebody's here, our obligation is to not send them back to the country where they would face prosecution. Our obligation when somebody is abroad is to help to share the responsibility for the world's refugee population.
The way the system works now is that the government has set up a number of obstacles to access, which doesn't prevent everybody from getting access but prevents most people from getting access. The way they put it is that they call them resisters who allow the entries to be at manageable levels, and they are. We manage our present intake.
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The system functions in a rough sort of balance now, because we get the numbers we want, or less. We can't even generate the numbers we've targeted in the past years.
We're certainly not overwhelmed; it's the opposite. We're always undershooting our targets in refugee numbers. If you look at the plans year by year, it's been a downward cycle. We plan for a number, but we don't make it. We plan for a lower number, but we still don't make it. This has been the history over the last few years.
Now, I would say we should be setting an overall target that is much higher and that would represent a much fairer share - that's the way I would put it - of what should be our share of the world's responsibility for refugees, because we are not only falling in absolute numbers, we're also falling in ranking. At one time we were near the top, and now we're nowhere near the top in terms of numbers per capita and numbers per capita GNP.
I believe we should be targeting a number that represents a more adequate share of our responsibility of the world's refugee population. But then how do you break it down between inland and overseas? The way I would put it is this. For overseas we should be a lot more receptive to private sponsorship than we are now.
The private sector, I would estimate, is capable of sponsoring about 30,000 a year. That's what they were doing in 1979-80 when there were no obstacles and we were dealing with the Vietnamese boat people. But now the private sector is actually getting in about 2,500 to 3,000 a year and we have a 90% rejection rate on private sponsorships, most of which I would say are rejected in error. That's the statistical fact behind the need to get some consistency in the decision-making, because the sponsors themselves pre-screen. I would suggest that if we got a much higher acceptance rate for private sponsorship and we continued with government-assisted sponsorship at the same level, then we would be getting closer to our share of the world's responsibility.
Mr. Mayfield: Do you have reasons for this diminishing number? Do you have just personal assumptions, even? I'd like to know what the reason for this is.
Mr. Matas: Yes, to my mind, it's a mismatch between program planning and program delivery. Obviously, when the government plans a target and it doesn't realize it, it's not because the government doesn't want to realize it. It's because they can't deliver on their promises. The reason that happens is that the visa office system really isn't functioning effectively in terms of refugee determination.
It's got to do with what I was saying before, that they're basically people dealing with economic immigration issues. They're not experts in either the refugee definition or country of origin information, and the result is that they're rejecting 90% of the cases.
That, to my mind, is the main reason why we need this specialized, independent decision-maker. It would not only be fairer, but it would allow for people who are genuine refugees and who have sponsors in Canada who are willing to support them to come forward.
The Chair: Mr. Dromisky, you'll have the last word.
Mr. Dromisky: Thank you very much. I'll be very brief.
Concerning the decisions that are being made, is there any evidence whatsoever of patterns possibly emerging at the political level? Are decisions being made that are influenced by our diplomatic status with the countries concerned, where the claimants might be appearing or where the refugees might be emerging?
For instance, are we more generous with countries with which Canada has normal diplomatic relations, or is there a difference with countries where there are strained diplomatic relations between Canada and the country in question? Is there a difference in the result between Canada and a country where we have no diplomatic relationship whatsoever? Is there any evidence at all of patterns emerging?
Mr. Matas: Yes, at visa posts abroad this is the problem. I've been talking about the problem of the non-specialized, but this is the problem with the non-independent. Visa officers are part of the government and they operate politically. They make decisions based on the politics of the international situation.
There are two instances that very readily come to mind. One of them is Afghanistan. Afghani refugees in Canada were accepted almost unanimously. Given the situation there, that's hardly surprising. But they were rejected almost unanimously abroad, the reason being, as far as I can see, that they didn't want the Afghanis who were in surrounding territories to leave. They wanted them as pressure for change on the government. There was this whole floodgates argument, or fear, which really isn't legitimate in a refugee context.
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The result is that we were getting virtually unanimous rejection of Afghanis at visa posts abroad, very often by applying the refugee definition in a different way abroad than in Canada - for instance, saying abroad that people who participated in armed combat could not be refugees, but not saying that in Canada.
Another example is the comprehensive plan of action in Indo-China. It's an agreement, but it's not a treaty; it's a political agreement, and the visa posts abroad enforce it. They won't even look at screened-out Vietnamese in the various Asian countries - Hong Kong and the Philippines and so on - whereas if they came here they might well be recognized as refugees.
Sure, it is a problem, and it's another reason why we've got to get these decisions out of politics and out of the hands of the visa officers.
Mr. Dromisky: Yes, but in one of your recommendations - in fact, your second last one - you're referring to a memorandum of understanding with the United States. In other words, all of the criteria, guidelines and so forth are going to be jointly established.
We have thousands of agreements and memorandums of understanding with the United States, and usually if we look at it very closely, we will find that we have followed, and we're being led. The case of El Salvador might be a good example. We behaved in a very particular way, which was in harmony with American policy. Who dictates to whom, and who controls, in a situation like that?
Going to your very first statement that you made earlier this morning - that it's about time we maintained our leadership and do certain things in order to clarify our leadership role and become leaders in the world - if you truly believe that, why are you recommending that we tie in so closely with the United States? The United States has a tremendous influence on us politically and in every other aspect of our being.
Mr. Matas: I should say I'm not an advocate of this memorandum of understanding. I'm not suggesting we enter into such an agreement. It looks as if it's happening, and there are ongoing negotiations. I'm saying if it is going to happen, which from my perspective may be an inevitability, then these are the sorts of things we should be asking for in negotiations.
I should say, though, to a certain extent what you're saying sounds like a position of despair. I don't believe we're that powerless in this area in relation to the United States.
In terms of El Salvadoran and Guatemalan refugees, for instance, we had a far different recognition rate from the United States at the time when the United States was arming the governments and not wanting to undercut the credibility of the governments by recognizing its opponents as refugees and the government as persecutory. We were able to do that.
If you listen to the departmental officials, you can make your own assessment of that. They say that they have had an influence on the American refugee determination systems through the negotiations about the memorandum of understanding. And that may well be true.
I believe this is an area where we could influence the United States, and whether we can or we cannot, I certainly think we should be trying.
The Chair: If you'll permit me, then, since we do have a minute, I'm interested in how you want to make the guidelines part of the Immigration Act, considering the fact that the guidelines are really not in a legal form; I would say they're case law or suggestions on how the IRB members will in fact render a decision. Could you be more precise about your recommendation?
Ms Sas: For example, a section could be added to the Immigration Act saying that in consideration of refugees claims the guidelines are to be applied. It could be as simple as that.
The Chair: But you would use the guidelines as such?
Ms Sas: Yes. I think if you go beyond that, then you're looking at modifying the convention, which as I've indicated before is not something we can do internally. But that would give Canadian legal effect to what is now just a directive.
The Chair: I thank you very much. I'd like to thank all of you for appearing here this morning and, as I said before, for your very informative brief. We look forward to seeing you again.
We'll invite Ms Audrey Macklin, please, to come forward.
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Members, we'll have to adjourn because there is a vote in the House. It's the half-hour bell. We have a vote. By the time we get the presentation, we won't have time for questions. I think we'll adjourn and we'll ask Ms Macklin back.
Thank you, members, for today. We are adjourned.