Bill C-291 (Historical)

An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171)

The House proceeded to the consideration of Bill C-291, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), as reported (without amendment) from the committee.

Immigration and Refugee Protection Act

[The Acting Speaker, Denise Savoie]

There being no motions at report stage, the House will now proceed without debate to the putting of the question on the motion to concur in the bill at report stage.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

moved that the bill be concurred in.

[The Acting Speaker, Denise Savoie]

Is it the pleasure of the House to adopt this motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Denise Savoie]

(Motion agreed to)

[The Acting Speaker, Denise Savoie]

When shall the bill be read the third time? By leave, now?

[Some hon. members]

Agreed.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

moved that the bill be read the third time and passed.

Madam Speaker, I am pleased to be here to debate my bill, Bill C-291, now at third reading.

I would like to start by pointing out that we have discussed this bill very intensely in committee. I know that the governing party did not support the bill, but I must nevertheless point out that all of these debates were respectful. Other subjects create more acrimony and tension in the House. During the vote at report stage just a few minutes ago, we saw an example of how the process was not abused as a diversionary tactic. I give the Conservatives credit.

This bill is very simple. It would establish the refugee appeal division provided for in the Immigration and Refugee Protection Act passed by this Parliament in 2002. Before this reform, two board members would examine the refugee claims together, and if one of the two members accepted the claim, refugee status was granted to the individual.

At the time, the government determined that it would be too costly, particularly given that in 95% of cases, the board members' decisions were the same. That was not surprising, considering that they sat side by side. They had plenty of opportunity to discuss the case and to influence one another. The government said that having two board members was too expensive and pointless, so it decided to cut down to one. To prevent arbitrary rulings, the government decided to set up an appeal division to allow people to appeal a number of possible errors. After consulting the population, immigration lawyers, experts in the protection of refugee rights and all kinds of other groups, Parliament concluded that this was a good compromise. It cut the number of board members by half in exchange for an appeal division.

The problem is that the Liberal government of the day and the Conservative government that followed never implemented that part of the legislation. Those listening at home may well wonder how the government can get away with ignoring the law.

When the House passes a law, it presumes that the government is acting in good faith and intends to respect the will of Parliament. When the time comes to implement legislation, the House generally gives the government plenty of flexibility in terms of when to implement particular provisions. Laws usually contain subsections stating that sections x, y and z are to be implemented when the government issues the order. That way, the government does not have to say whether it needs six months, eight months, 12 months or 14 months to implement a particular provision—in this case, the refugee appeal division. Parliament believes that the government will eventually implement the provisions. In this particular case, that should be all the more true because the government had a majority at the time. So members have every reason to wonder why a provision was included in the legislation if the government had no intention of acting on it.

Unfortunately, that is what happened. This happens rarely—never, as far as I know, until now. This provision has been languishing for eight years. It is part of the legislation, but it is meaningless because the government has refused to issue the necessary order.

The bill before us amends the original provision that gave the government the authority to determine when the division would be created and replaces it with a fixed deadline of one year after it receives royal assent.

I mention this because basically I think, with this bill, before even touching on the content and wisdom of the provision itself, we must see this as a matter of respecting the will of Parliament, and by extension, democracy.

Every time there is an election, millions of voters take the time to go to the polling stations and vote to elect the 308 members who sit in this House so we may pass legislation, and keep an eye on the government and keep it in check. When a government—or two in this case, since it was first the Liberals and then the Conservatives—shows complete scorn for the will of this House for eight years and gets away with it—and we are not talking here about a motion that will have no impact, but rather a duly passed law that was given royal assent—when Parliament is ignored by the government for eight years, I think the minimum act of respect that we owe each other as members of this House is to send a message to the government, regardless of its political stripe, to the effect that when this House and the Senate pass a law, it becomes law and the government must implement it. There is an important aspect to this bill. I think that if it were not passed, that would send a very odd message to the government. We would basically be telling it that it can do whatever it wants with the laws we pass here.

That being said, let us look at the crux of the issue. Why is the refugee appeal division necessary? I would say that the answer has to do with natural justice. Regardless of their political systems, western nations and modern countries have relatively sophisticated justice systems that are designed to prevent arbitrariness and abuses. These government legal systems came out of the middle ages. They are not a recent invention, but began when it was decided that a single individual would no longer have the power of life and death over people and that rules and mechanisms to enforce them would be created. That is what really came out of the middle ages. All around the world and throughout our own legal system, there is the fundamental principle of the chance to appeal, the chance to say that there was clearly an error in a decision and to request that it be reviewed by a second independent party. The appeal process exists everywhere. In Canada, there is just one time when there is no chance to appeal a decision on its merits, and that is when it comes to determining refugee status.

Yet refugee determination decisions are far more serious than decisions handed down by many other tribunals where there are opportunities to appeal. You can have a fight with your neighbour over a fence, and if you are not happy with the decision, in many cases you will have the chance to appeal.

Here, we are talking about decisions that, in some cases, could mean removing someone to a country where he or she will be tortured or even killed, yet there is no chance to appeal. A decision will be made based on the judgment of a single person. It is simply irresponsible.

Human nature being what it is, every person who acts as a board member can make mistakes. In addition, some board members have serious competency problems. Some accept nearly all the claims they hear, while others reject nearly all of them.

I have a case in my riding where a person's claim was rejected by a board member, Laurier Thibault, who at the time was rejecting 98% of the claims he heard.

If a person appeared before a judge—which could happen to anyone here—and before entering the court room they were told that the judge hearing the case convicts 98% of people who appear before him, the person would say this is a parody of justice and they would be right.

Such things can continue to happen because the board's rulings are currently not subject to any control. They can do what they want and there will never be an appeal or any way to know whether their rulings are appropriate. If a judge's rulings in regular court were systematically overturned on appeal, at some point the chief justice would tell him there is a problem.

No such thing exists when it comes to determining refugee status, with the perverse effect that immigration lawyers cannot answer their clients when they ask what their chances are of being accepted. The lawyers are forced to tell their client that it is like a lottery: if they appear before a generous board member, they will be accepted, but if they are heard by a racist board member, they will be turned down.

As a result, people end up making an application when they otherwise would not. If there were a system equipped with an appeal mechanism and real case law, people would know that even if they are heard by a rather generous board member who grants them refugee status, the minister could appeal that decision in order to avoid setting a precedent. After a few months, there would be clear case law: we would know who will be accepted and who will not. The same rules would apply to everyone and this would greatly decrease the number of not so legitimate applications made at the beginning of the process.

Mr. Speaker, my colleague the parliamentary secretary will probably tell us in a few minutes that there are many avenues of appeal. I must admit that there are avenues to appeal the process but there can be no appeal of the merits of a case. Every lawyer who appeared before the committee told us so. Many lawyers, disappointed with the decision on the merits of a decision, use the procedures of the Federal Court to overturn the decision when they cannot appeal the merits of a decision.

The Federal Court itself ruled that it did not have jurisdiction to rule on the merits of a decision. For example, if a board member says that he finds the statements of an applicant to be false and rejects his application, the Federal Court cannot overturn the decision. In some cases, the judge has even said that, had he been the commissioner, he would probably have made a different decision, but that he can only rule on the process and that it was followed correctly.

There is also the pre-removal risk assessment, the PRRA. Once again, it is not a true appeal. It only makes it possible, and in very rare cases, to avoid removal when, for example, the political situation has changed in the country of origin or when new evidence is submitted. However, evidence submitted in the initial hearing to the commissioner cannot be submitted once again, and therefore it is impossible to appeal on the merit of the decision.

Everyone agrees that, at present, those applying for refugee status must wait too long. We need a more efficient system, and case law and rules that are clear for everyone. There would be no point in filing an application unless you met the criteria because you would know in advance what the decision would be. There would no longer be a board member lottery. It would shorten the process and decrease the number of people who make pointless or unfounded applications. In addition, it would be less costly and would allow lawful applicants to obtain a decision more quickly.

For all these reasons, and out of respect for our democracy and this Parliament, I encourage all members to support this bill.

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Madam Speaker, I know the member for Jeanne-Le Ber has worked hard to get his private member's bill through the House and, despite the fact that we are at a juxtaposition on the bill, I want to congratulate him on that. I could not disagree with it more, but at the very least I congratulate him on his ability to get it here. I know private members' bills are not easy to get to third reading.

One thing he did not identify in his speech and one thing that is critical to the mechanism he wants to lever, to institute, is the fact this will cause significant delay in the process. It will mean that our numbers, in terms of refugees who are on our list to be heard, will grow continuously.

Could he please identify how he supports his bill in the point of view that it will actually cause further delay in the process and larger lists?

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Madam Speaker, I took a few minutes to explain that I think that in the middle term, but not in the first few months, the effect could very well be the reverse and we would see shorter delays. With clear rules and case law, there would be fewer unfounded claims.

We must understand that, with the bill, the failed claimants will not be the only ones who can appeal. The minister could also appeal if he or she feels that a board member is automatically granting refugee status and abusing the system, as we have seen happen. After only a few months, a pattern will quickly emerge. People will know what to expect and they will not file a claim if they know that it will quickly be rejected.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Madam Speaker, we know that implementing the refugee appeal division would save time and energy in the federal court. We also know that if it is implemented, we probably will not need the pre-removal assessment process.

Would the member agree that it would save taxpayer money in the federal court because there would be fewer appeals there and then the PRA, the pre-removal assessment, process would not likely have to occur?

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Madam Speaker, that is especially true because the refugee appeal division process is much less complicated than the Federal Court process. The Federal Court gets more bogged down in procedure and is not specialized in these cases, and can therefore not rule as effectively as a specialized tribunal like the refugee appeal division could.

This means that an appeal to the division would be much less costly than an appeal to a higher court. I truly believe that there would be savings there. It is the same thing for pre-removal risk assessments, or PRRAs. Lawyers who testified before the committee told us that nowhere in the legislation does it state that public servants must examine these appeals. The government could very well assign this responsibility to the refugee appeal division.

It is possible that more changes would have to be made. Members will understand that we are rather limited in what we can do with a private member's bill. If the government has some better suggestions, we will listen. In the meantime, I think that the least we can do, as self-respecting parliamentarians, is to enforce and respect the wishes of Parliament.

Once the bill is passed in this House, there will still be a few weeks in the Senate, royal assent and then a full year. If, by chance, the government decided in the meantime that it had a real, more effective solution than what is proposed in the bill, we would still have a year to examine it and put it into effect. In any case, we are better off not taking any chances, and supporting Bill C-291.

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Madam Speaker, I will get to my notes, but I wanted to say that we were going to be working through this private member's bill a couple of weeks ago. We came all prepared one morning to debate and give our speeches; however, the member for Jeanne-Le Ber was not here. We were trying to figure out what had happened.

At first, we worried a little. He has a couple of young children back home. We thought that maybe something was up. Then I thought that perhaps he had seen the light and that he was not actually going to present his bill because he saw that it was not the right thing to do. However, the reason that he decided to not be here was because he was a little bit concerned about a vote that was going to happen and the potential of this working into that vote. It was a little bit of strategy. He did not quite see the light, but there was a short time period when I thought he just might have.

Canada's asylum system has one of the highest acceptance rates among Western countries, accepting 42% of claimants in 2008. Last year, we granted protection to more refugees per capita than either the United States or Australia. Unfortunately, a large and growing number of unfounded refugee claims are putting a real strain on our system and, as we have repeatedly argued, are making wait times longer for legitimate refugees. Longer delays put more stress on real refugees who have already suffered enough in their homelands.

I do not see how Bill C-291 would even begin to solve this problem. That is why I rise with my colleagues in the government to oppose this bill. Clear, straightforward refugee claims are taking far too long to reach a decision and unsuccessful claimants are typically allowed to stay in Canada for years, taking advantage of the various levels of recourse that are available to them.

This bill would add an additional recourse to the already large menu of recourses available to failed claimants. Expanding the already complicated process would make Canada more attractive to economic migrants seeking to game the system and stay in Canada by filing a false refugee claim. We continue to oppose Bill C-291 because it is not necessary in the current system. As we have said, it is not efficient, since it would add considerable delays and further costs to the refugee determination system.

For the past several years, we have been advocating for a fair and balanced asylum system that provides timely protection to people in need and removes those who would try to circumvent the immigration process by claiming refugee status when they simply should not. As we have told hon. members of the House, since 2006, the number of asylum claims Canada receives has increased by 60%. The increase in refugee claims, many of them unfounded, places stress on decision makers and on refugees.

With at least 60,000 refugee claims in the system backlog, we now have a two-tier system in which some immigration applicants wait patiently in line, often for years, while others use the asylum system to jump the queue. Our system is simply not able to handle this many claims. With every incentive for bogus refugees to come here and with every delay, we add to this system. We make Canada more attractive, not to the refugees who need our country but to those who want to process under false claims.

Too much time and too many resources are being spent to review claims of those who are simply not genuine refugees and who stay in Canada for years, often at taxpayers' expense. Canadians support a refugee system that is generous to those truly in need, but the current system of unending recourse and the cases of unfounded claimants exploiting our generosity undermines Canadian confidence and our system itself.

Bill C-291 would not address the pressure related to rising asylum claims. It would not fix the lengthy and complex system related to various recourses available to failed claimants. In fact, it would simply make the situation worse. All it would do is add another layer. It would do very little to provide additional safeguards for claimants. As we have long argued, under the proposed legislation, the refugee appeal division would provide only a paper review of decisions made at the refugee protection division of the Immigration and Refugee Board.

As we have said, a paper review would not provide the opportunity for an in-person hearing. That means no oral appeal. This review would be based on the same information and evidence on record that was used by the board in assessing individual refugee cases. This review would only determine if errors in fact and/or law had been made.

The current system, and no one is arguing this, is slow and complex, and it already includes multiple recourse mechanisms, so a further level of review is simply redundant and unnecessary. Not only would it make the current process even longer but ministry officials came and presented to the committee that it would result in tens of millions of dollars in ongoing annual costs not just to the federal government but to the provincial governments as well.

We need to fix the system. No one argues that, but we need to fix it so that real victims of persecution quickly receive protection in Canada and those whose claims are unfounded or bogus are sent home quickly.

With no fewer than three separate opportunities for recourse: judicial review by the Federal Court of Canada, pre-removal risk assessment, and application on humanitarian and compassionate grounds, there is no reason whatsoever to add another. That is all that Bill C-291 would do. It would just be adding another layer of review, another layer of process.

We are here to fix government, not to burden government, and not to add more and unnecessary processes, which actually helps no one.

Make no mistake. This is not an “instead of” any of these provisions. This is in addition to them. Bill C-291 would not streamline anything, nor would it do anything to reduce the months or even years it can take to make a final determination on a refugee claim. In fact, the opposite would be true.

This is just simply not fair. By adding yet another layer of review, we would be putting at risk the fairness Canadians have come to expect and that has allowed our global reputation to take shape. It is certainly not fair to ask the provincial and the territorial governments to continue to provide social and financial supports to someone whose claim has already been unsuccessful four times.

We already have a process that allows an individual to appeal three times, and around the world, we have met with presenters who have said our system is by far if not the best, one of the best in the world as we stand.

We are aware, the government is aware, and the minister is aware of the problems with our refugee system. I want to make it clear that we intend to work toward building a better system for refugees and for Canadians. However, this bill would not lead to positive change. It does not take us in the direction that we need to go with respect to revamping the system. In fact, it would further complicate our system.

Therefore, I simply conclude by indicating that the government will not be supporting Bill C-291 and I urge my colleagues on the other side of the House to support that position.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Madam Speaker, I listened very carefully to the mover as well as the parliamentary secretary, and want to express my gratitude to the member for presenting Bill C-291, but I do want to give it some context.

There is no question in Canadians' minds that they deserve a refugee system that works, one that respects due process, creates avenues of equal opportunity, and provides safety for individuals who are in need of protection.

Unfortunately, today we have a broken refugee system with the following problems: a staggering 61,000 backlog of refugee claims; an increase of 17.7 months for the processing of claims, in other words, a wait of almost two years; a drastic decrease of 50% for the number of finalized claims; an almost 50% increase in the cost to finalize a claim, an estimated cost to Canadian taxpayers of approximately $29,000 for the processing of each claimant; and a 50% increase in the number of deportations from Canada over the last decade.

One of the first questions I asked when I was appointed opposition critic for citizenship and immigration was precisely on this issue and I want to cite the response given by the Minister of Citizenship, Immigration and Multiculturalism. In response to the question he said:

Mr. Speaker, I am really delighted to hear the interest of the member in hopefully working together to create a more efficient refugee determination system...However, the member is quite right, it is not efficient and the reality is that last year we received 38,000 inland refugee claimants, about 60% of whose applications were rejected by the IRB.

I would like to work with the member to find ways that we can dissuade people from making false refugee claims, seeking to jump the queue and to come to this country illegally under the cover of being refugees.

There is no question that the minister understands that the system is broken and that question was asked on March 11, 2009. This is a question that still of course requires an answer.

The Auditor General has stated some major concerns as well and so has the minister's departmental plan. To cite from what the minister said in committee on October 6: “As I indicated, that growing backlog reached 61,000 this summer”. He also said: “Mr. Chairman, under the current system, it's taking over 18 months for a claimant to get a hearing at the IRB”. He also said: “This is a broken system, and it needs to be streamlined”.

Where the minister stands is obvious. I have a suspicion that the minister is not getting the support he requires in cabinet to make the necessary investments to fix the system that we on both sides of the House all agree is indeed broken. So here comes this bill, Bill C-291. Of course, it is a bill that compels the government to bring certain provisions of IRPA into force for the purpose of creating the refugee appeal division of the Immigration and Refugee Board. Section 110 deals with the appeal, section 111 with the refugee appeal division decision, and section 171, the proceedings of the refugee appeal division.

On both sides are those who oppose and talk obviously about duplication. The CIC officials argue that the RAD is unnecessary given other avenues of appeal and recourse prior to deportation. They also say that we have a need for wider reform. I agree with that. We have to look at the entire system. It is arguable that the implementation of RAD must be accompanied by reform of the refugee determination system in order to enhance efficiency overall. There are concerns about costs. There are concerns that the RAD would only provide a review on the record. It would burden the system even further. We have heard all that.

We have heard all the points. I am very happy about the fact that I pushed for the bill to go to committee because both sides have raised important issues that required careful analysis and thought.

Those in support speak to fundamental issues of justice. For example, the administration of justice itself, that the RAD provides a way to balance the rights of refugees with the integrity of the immigration system.

On the issue of efficiency, the RAD would be a specialized appeal division as opposed to the federal court. It would increase the efficiency of the system, while still ensuring the humane treatment of those in need of protection. The implementation of an appeal division would improve public perception of the Immigration and Refugee Board.

Consistency in decision-making was also mentioned as one of the rationale for the original proposal. The creation of the RAD would allow for greater consistencies when reviewing the facts of a decision.

The other issue that was raised was procedural safeguard. The RAD would serve as a procedural safeguard and would enhance the IRB credibility to ensure justice is done so that no decision to deny refugee status would lead to serious consequences, such as detention, torture or death.

On the final point under judicial review, the judicial review of an IRB decision is more limited in scope than the appeal contemplated in the RAD. The court cannot replace a decision by the IRB with its own judgment. The federal court does not specialize in refugee matters, whereas advocates for the RAD would have an expertise in refugee determinations.

That is what we heard. This is an important bill to analyze because this is an important issue. I want members in the House to remember the context I presented today, that we are dealing with a broken system.

As a member of Parliament who likes to hear both sides of the debate, I want to put the government on notice. I am waiting for a reform package. I am 100% behind the concept of co-operating with the government and parties on all sides of the House to ensure we address the key concerns I cited earlier in my speech in reference to the broken refugee system. It has to be a system that is fair, a system that is just, a system that respects and meets Canada's international obligations to protect refugees and maintain confidence in the system. We have heard that inland refugee systems can take up to eight years to finalize a claim. That leaves thousands of people living in limbo, and that is not fair. A decision needs to be made within a responsible and acceptable timeframe. We need an appeal decision process that is fair and accessible.

The reality is when claimants fail, they unfortunately need to leave. The entire process should take closer to 12 to 18 months rather than 8 years. It has to be efficient, it has to be fair and it has to also maintain the integrity of the system itself.

It is for this reason that I put the government on notice. I support the bill. I will give the government time to present a reform package that also includes an appeals division.