Bill C-11 (Historical)

Balanced Refugee Reform Act

An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act

This enactment amends the Immigration and Refugee Protection Act, primarily in respect of the processing of refugee claims referred to the Immigration and Refugee Board. In particular, the enactment
(a) provides for the referral of a refugee claimant to an interview with an Immigration and Refugee Board official, who is to collect information and schedule a hearing before the Refugee Protection Division;
(b) provides that the members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act;
(c) provides for the coming into force, no more than two years after the day on which the enactment receives royal assent, of the provisions of the Immigration and Refugee Protection Act that permit a claimant to appeal a decision of the Refugee Protection Division to the Refugee Appeal Division;
(d) authorizes the Minister to designate, in accordance with the process and criteria established by the regulations certain countries, parts of countries or classes of nationals;
(e) provides clarification with respect to the type of evidence that may be put before the Refugee Appeal Division and the circumstances in which that Division may hold a hearing;
(f) prohibits a person whose claim for refugee protection has been rejected from applying for a temporary resident permit or applying to the Minister for protection if less than 12 months have passed since their claim was rejected;
(g) authorizes the Minister, in respect of applications for protection, to exempt nationals, or classes of nationals, of a country or part of a country from the 12-month prohibition;
(h) provides clarification with respect to the Minister’s authority to grant permanent resident status or an exemption from any obligations of the Act on humanitarian and compassionate grounds or on public policy grounds;
(i) limits the circumstances in which the Minister may examine requests for permanent resident status or for an exemption from any obligations of the Act on humanitarian and compassionate grounds; and
(j) enacts transitional provisions respecting the processing of pending claims by the Minister or the Immigration and Refugee Board.
The enactment also amends the Federal Courts Act to increase the number of Federal Court judges.

Balanced Refugee Reform Act

[Jason Kenney, Conservative, Minister of Citizenship]

Mr. Speaker, I thank the member for her comments. Her compassion for refugees is quite evident.

I have just a couple of comments.

First, the member raises the question of the eight-day triage. I should point out that currently, when refugee asylum claimants arrive they have an initial interview with somebody from the CBSA. Counsel is almost never present. The proposition is for a triage interview that would not be a legal hearing. It would simply be an opportunity for someone from the independent IRB, far better trained than officials at the CBSA, to get the essential outline of the claim, identify whether or not someone has a manifestly well-founded claim and to recommend them for priority treatment so they can get faster protection.

However as to her point with respect to Sri Lanka, one of the criteria we propose for the designation of safe countries is that, of their principle source of claims, the vast majority are unfounded. In the case of Sri Lanka, 91% of claimants are people who have a well-founded fear of persecution. Therefore a country with such an acceptance rate would not be even remotely considered for inclusion in the designated safe country list.

Finally, I have a question for her.

The Leader of the Opposition, her leader, said on August 13 of last year, “I want a legitimate, lawful refugee system that welcomes genuine Convention refugees but then says, look, there are a number of countries in the world in which we cannot accept a bona fide refugee claim because you don't have cause, you don't have just cause coming from those countries. It's rough and ready but otherwise we'll have refugee fraud and nobody wants that”.

That is what the hon. Leader of the Opposition said last August 13 in Saint John, New Brunswick, and I would like to know whether the member for Laval—Les Îles agrees with her leader in that respect.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Mr. Speaker, I would like to respond to what the minister said about Sri Lanka.

I have represented the riding of Laval—Les Îles in this House for 13 years. The example I gave dates back to the time when I was a member of the Immigration and Refugee Board, many years ago. At the time, Sri Lanka was not a safe country. Colombo was designated as a safe city in Sri Lanka. I think the minister was mistaken about what period I was referring to.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I thank the member for her very cogent and thoughtful comments on the bill. I also thank the government for bringing forward these changes and for bringing forth an appeal process.

However, a number of very experienced people in this area have raised a number of concerns and I am hopeful that we genuinely will allow for significant amendments.

The member raised important concerns that I have heard from a number of members in the House about the safe countries of origin list. I would like her to comment on the fact that a number of people, including Amnesty International, have raised serious concerns about this and questions whether it is appropriate to designate a country of origin as a safe place and that in fact the process should be based on the claimant, not on the country of origin.

We know that it could be women at risk, there could be sexual orientation at risk, there could be a number of factors, even though generally the country is deemed safe, democratic and according to the rule of law. I wonder if the member could elaborate a bit more on the number of concerns that she has raised and the concerns raised by Amnesty International, particularly on the issue of the safe country of origin.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Mr. Speaker, I completely agree. I gave the example of people who had filed refugee claims because they were homosexual and were not protected by their country's legal system.

I chose this example in particular because it is not directly related to democracy. That country, which will remain unnamed, is considered to be a democratic country, which has passed laws to protect these people, and is currently on the list of safe countries.

However, even though I am no longer a member of the Board, I meet people who have no reason to tell me about their problems, and I know that these people were not protected in their country.

I did not have time to mention this during my speech, so I would like to add that I hope this bill goes directly to committee after first reading. It is an extremely important and complex bill, and we must give the Standing Committee on Citizenship and Immigration as much time as possible to discuss it.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Madam Speaker, I would like to echo what my colleague from Laval—Les Îles said. We hoped the bill would be sent to committee immediately after first reading so that we could make the necessary amendments to it.

On the whole, we support the minister's initiative to change refugee protection. These changes were urgently needed. But the bill has some serious flaws, most of which my colleague already mentioned.

For my part, I would like to talk about how the United Nations High Commissioner for Refugees looks at safe countries and come back again to the issue of sexual orientation and gender, which can be seen as grounds or reasons for abuse in refugee claimants' countries of origin, even countries that are generally considered democratic.

There is another problem as well. I do not know whether it has already been raised, but I would like to mention it. It seems that $540 million has been earmarked for this reform, but it is not included in the budget.

I would like to ask the minister where the government is going to get the money to proceed with this reform. Does it plan to cut spending in other areas or other parts of the Department of Citizenship and Immigration? If so, where is it going to make cuts to pay for this reform?

I would also like to make mention of the vocabulary we use in referring to asylum seekers or political refugees. It is dangerous to talk about bogus claimants and even very harmful to the whole refugee system.

We need a reasoned, respectful discussion based on facts, rather than just on insults and simplifications. Not everyone who applies for refugee status may need protection. Some people may feel threatened when in fact they are not, but that does not mean they are abusing the system. They may have had very good reasons for leaving their country of origin, even though those reasons do not make them refugees under the law.

Refugees are some of the most vulnerable members of society and are, therefore, easy targets for attack as non-citizens in a foreign country, in this case, Canada.

Denigrating labels, especially those given by the government, have a serious negative impact on the public's perception of refugees and non-citizens in general. This often surfaces in public discourse about immigration and refugee status.

There is an enormous amount of confusion about the rights of refugee claimants. They are seen as perpetual system abusers. But many of these people have very serious and obvious reasons for seeking asylum in Canada.

I will now come back to two questions that complement those asked by my colleague from Laval—Les Îles. In terms of funding, where will we find the $540 million needed to see the reform through to the end? There is also the question of vocabulary. Is it be possible to be more careful when talking about people seeking asylum? We need to look at how we treat them and talk about them.

The question of safe countries has been debated at length. The minister has made some clarifications about the 8 days and 60 days. However, it would be extremely important to very clearly define, in committee, the impact of the interview that takes place within eight days and the repercussions this interview would have on the application.

In general, the minister's reform proposal is a great initiative. It is a good start. It was urgent and necessary. However, we must agree that other discussions will be necessary in order to improve it and make it as good as possible.

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

Madam Speaker, I appreciate that on a number of occasions in her speech today my colleague touched on the fact that these reforms are necessary and that she and her party are supportive of a number of the reforms in the legislation. In fact, it sounds like she would like to get this bill to the citizenship and immigration committee, on which she was a member, as quickly as possible.

One of the points that she raised, and on which I seek some clarification from her, concerns a reform in the legislation for the expansion of an additional 2,500 refugees, asylum seekers, to our country, 2,000 of whom would be those in private lives who would be able to provide that care and that sponsorship, and 500 additional government-sponsored refugees.

Another issue that she spoke to was the issue of being kinder or nicer, or something to that effect. I would like to suggest that our legislation, because of this reform, speaks exactly to the type of kindness that this country has and speaks exactly to the type of kindness that we need to generate through our refugee reform policy. I would ask the member if she would make sure to clarify her point on that.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Madam Speaker, it actually had little to do with that. Yes, I recognize that the government is proposing to increase the number of refugees that will be accepted in Canada yearly. However, it has very much to do with the vocabulary the government often uses around the question of asylum seekers. It is in that sense that I was hoping we would be very careful on how we speak about refugees and asylum seekers.

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

Madam Speaker, I want to thank my colleague for her speech. It was not so long ago that she sat with us on the Standing Committee on Citizenship and Immigration. We miss her.

She is familiar with Bill C-291 that I introduced. The purpose of the bill was to implement a refugee appeal division, which is being partially presented in the bill before us today. My colleague worked on promoting this appeal division. Unfortunately, this bill was defeated in the House because of the Liberals. During the vote, 12 MPs were absent. They had won the previous vote by three votes and then had the nerve to keep four members seated and have them abstain from voting. The bill was defeated by only one vote.

Considering all the effort she made in promoting this bill, is she not a little disappointed in the behaviour of her colleagues who have abandoned refugees?

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Madam Speaker, the hon. member will understand that I am not going to make any comments on the behaviour of my colleagues with respect to what happened before the holidays. However, I can say a few words about the appeal process presented in the bill. It is a start, but it is not a complete response.

This is part of the work the committee will begin rather quickly, I hope. We have to look at how this appeal process will work, as my colleague the hon. member for Laval—Les Îles pointed out. Asylum seekers will rarely be given the time to stay for an appeal. This is something that absolutely must be discussed.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, when the minister tabled his bill, he described how we needed to make these amendments to ensure the process was fast and fair.

I would suggest that it is probably more appropriate to say that it would be timely and just. I wonder if the member could speak to that issue, particularly in the avenue of having access to legal counsel. Does the member think legal counsel should be available at all stages of the process?

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Madam Speaker, I most definitely agree that legal counsel should be available at all stages, especially at the appeals process where the refugee claimant must be given enough time and elasticity to present when that appeal goes through.

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

Madam Speaker, I am pleased to be here to speak to Bill C-11, which provides for equitable reforms with respect to refugees. It is about time we looked at this because the process for dealing with refugee claims submitted by people who show up at our border crossings has been a big problem for a long time now. These people come to Canada claiming to have been persecuted in their home countries. Because they get no protection there, they come here to ask Canada for protection.

The number of claims awaiting processing has skyrocketed over the past few years. Processing delays are far too long for all cases, particularly those based on the Geneva convention, which defines a refugee claimant. People who submit claims live in limbo for years, but they deserve a faster response.

This also happens to other persecuted individuals in extremely difficult circumstances around the world. These people submit their refugee claims in good faith because in many cases, they believe the legal definition applies to them, but their cases are dismissed after they have spent several years in Canada. They may have jobs, friends, families, houses. The wait times are also far too long for some unscrupulous opportunists who take advantage of the situation to try to stay in Canada as long as possible or even permanently.

This problem is due in large part to negligence on the part of the current and former governments, which hired too few members. This has been the norm at the Immigration and Refugee Board for a long time now. When there are not enough board members to process claims, when staffing levels are only two-thirds what they should be, fewer claims are processed and wait times go up.

I have a very hard time understanding this situation. Why did the government not take action sooner? Why did it not take steps to shorten wait times?

The committee often studies what is going on in immigration. I have become deeply convinced that, unfortunately, wait times are being used as a tool to manage the arrival of immigrants or, in this case, refugees. Allow me to explain.

Normally, in the health care system, wait times are due to an insufficient allocation of resources, which is involuntary because resources are scarce. Because more people need services than there are resources allocated, wait times increase over time. That is why only a certain number of people can be treated every year.

Where immigration is concerned, it is somewhat the reverse situation. Insufficient resources are voluntarily allocated to processing claims so as to not exceed the quotas and objectives that have been set. This is never acknowledged officially or publicly, but almost everyone agrees that only a certain number of people can be admitted to Canada every year.

Society has the ability to absorb a number of people from all over the world. Means are therefore sought to try and control the influx. For many years, it suited governments to have prolonged processing times. It helped slow down the influx of refugees, who figured it would be complicated to get into Canada and that it would take a few years. This acted as a disincentive.

It became a problem when the government lost control and found itself with long wait periods and a process so complicated that it almost acts as an incentive for people to come to Canada. They figure that their claims will take years to process and, during that time, they will be in a safe country and will not have to fear for their safety.

So previous governments and the current government are to blame for part of the problem, but at least we have a bill before us that is aimed at tackling the problem.

I recognize that there is a problem and that it is good to have a bill to deal with that problem. I believe that this bill contains some interesting principles. The Bloc Québécois will support it at second reading to send it to committee.

We asked that this bill be sent to committee even before second reading so that we would have complete latitude to study it and suggest constructive improvements. But the government did not opt to go that route. I hope that if we work together in committee to make the bill better, we will not get bogged down in “proceduritis”.

Let us look at the main elements of the bill. No one will be surprised that I am going to start with the refugee appeal division. This bill finally provides for implementing this division, even though it has been in the act for quite some time. In fact, the 2001 Immigration and Refugee Protection Act provided for an appeal division. At the time, two board members considered a refugee claim at the same time, and all it took was for one member to approve the claim for the claimant to be accepted. In 2001, the previous Liberal government told Parliament that it would reduce the number of board members from two to one, but that it would create a refugee appeal division to make up for the change and avoid arbitrary decisions. This Parliament voted for that. But the Liberal government unfortunately never implemented its own act and the refugee appeal division, and the Conservatives have not done so either.

That is why the Bloc Québécois has repeatedly tried to force the government to implement the division, the last time being when it introduced Bill C-291, which was passed at second reading but unfortunately defeated by a single vote at third reading because of a rather pathetic Liberal tactic.

I do not agree with the Conservatives' positions, but at least they were honest about the fact that they were opposed to the refugee appeal division and would vote against it. The NDP and the Bloc said they were in favour of the refugee appeal division and said they would vote to support it. The Liberals, on the other hand, said they supported it, but curiously, during the vote, 12 members were absent, that is, double the number of absent members of all the other parties combined.

The vote before and the vote after the vote in question were won by the three opposition parties by three votes, but when the time came to vote on Bill C-291, four Liberal members mysteriously remained seated and coincidentally, the bill was defeated by a single vote. That is a lot of coincidences at once. As we all know, that was the Liberals' strategy to try to appease their electoral base while still defeating the bill in the House.

I do not mean to dwell on the past, but I thought it was important to remind the House of what happened.

Let us now look forward. Why is the refugee appeal division necessary? Contrary to what is indicated in the bill before us, why should it apply to everyone?

All of our legal systems include the opportunity to appeal. The reason is very simple: because justice is administered by humans and humans can make mistakes, the system recognizes that the justice system can make mistakes.

Opportunities for appeal will therefore be included everywhere to correct potential errors.

The bill also proposes appeal mechanisms in our legal systems to ensure uniformity. The goal is to ensure a reasonable expectation that a certain type of case, say x, will produce a certain outcome and that every case like case x will produce that same outcome. That is not how it works at the moment.

Here is an example of how similar claims were treated differently by IRB members. This happened to twins, brothers from the same country. Their claims were reviewed by two different board members, and each one made a completely different decision. The cases were alike, they were brothers who had been through the same thing together, yet the board members did not make the same decision. Clearly, there is a lack of coherence. An appeal division would have made it possible to determine which board member was wrong or mistaken.

Appeal mechanisms seek to eliminate arbitrary treatment by giving our legal systems oversight over lower-level rulings. Some board members have rejected as many as 98% of the claims they have dealt with, while others have allowed nearly every claim that has gone before them.

If I were in court one day and someone told me before the hearing that the judge convicted in 98% of his or her cases, I would know that justice was not being served and that it was a farce. I would know the dice were loaded. But in a typical legal system with an appeal division, if every decision made by a board member or judge was overturned on appeal, the chief justice would eventually tell the judge that his or her rulings were a problem.

The same applies to the IRB. An appeal process ensures that those making the decisions in the first place really think them through. Decision makers have to remember that their decisions can be appealed. They have to really think about their decisions and consider whether they are likely to be upheld or systematically appealed.

That is not in the legislation. I know that there have been some intense discussions with the minister about the current potential for appeals in the legislation. There is none. I have been saying it all along, and I will say it again today. There are ways of getting around it, such as the judicial review process at the Federal Court. Very few applications are accepted. In all cases, only the procedural aspect of the application is examined. No one can request a judicial review on the basis of the facts. For example, if a member says that he does not believe a person's story and does not think he is credible, the Federal Court would never say that his story was credible and approve his application.

There is the issue of pre-removal risk assessments. This procedure is very rarely applied. In fact, only 2% of the applications involving new facts since the initial hearing are accepted. It is not truly an appeal mechanism. Neither is a permanent resident application on humanitarian grounds. Some people use it as a second attempt if they think there was an error with their case at the initial hearing. It does not fall under the definition of refugee status as adopted by the conventions supported by Canada.

I have spent a lot of time talking about the appeal division. I think that natural justice is something really fundamental, and we cannot ignore it. The problem with the bill before us is the exemption for so-called safe countries. The minister said that he would create a list, but we have no details about that yet, and people who come from these so-called safe countries will not have access to the refugee appeal division.

Finally, the bill takes a positive step by implementing the refugee appeal division and—let us be frank—by improving it in certain ways, for instance, with the possibility of presenting new evidence and testifying again. Nevertheless, a certain proportion of asylum seekers will not have this opportunity. In my opinion, that is a mistake. When it comes to equality of the most basic rights, we must not treat people differently based on their country of origin. That seems obvious to me.

When a person appears before a tribunal that will make a decision far less significant than one where the person could potentially be sent back to be tortured, killed or persecuted, the tribunal does not take the person's country of origin into account. When neighbours are in a dispute over a fence, neither party would ever be denied the right to appeal based on their country of origin. Everyone is treated equally, regardless of where they are from.

I do not see why this distinction would be made in the case of refugees. It is not necessary. The bill already provides for an expedited process, namely by suspending for one year the possibility of applying for a pre-removal risk assessment, a temporary resident permit or permanent residency on humanitarian and compassionate grounds. These options that were once available to refugees no longer appear in the legislation. We do not think it is necessary to go so far as to prevent people from safe countries from using the appeal division.

I will now say a few words on the issue of deadlines, which are of particular concern to me. Deadlines do not figure in the bill, but I imagine they will be included in the regulations. It seems that the minister intends to give refugees eight days from the time refugee status is claimed to the time they meet with an IRB officer for help with the application. As I was saying earlier, although generally speaking it is a good idea to expedite the process, in some cases this can be problematic.

When a refugee from another country who has been persecuted and perhaps raped several times arrives in Canada, they are told that they have one week to tell their whole story. Many psychologists would say that you can work with a rape victim, for example, for months before they start talking about their experience. Perhaps we should include mechanisms to correct this. In addition, the interview will be used later, during the hearing and possibly the appeal, to discredit the person. They will be asked why they did not report certain things during the initial interview. We must ensure that the person's psychological state during the interview makes it possible to truly tell their story.

I also have concerns about the timeframe for the hearing, which is 60 days. It is a good thing if applicants who are ready do not have a long wait for their hearing. In some cases, however, it may be extremely difficult to obtain the evidence and documents that might be very far away. In some parts of the world, it can take two weeks for a document to arrive and another two weeks to send it back. That adds up to a month, leaving only 30 days for the lawyer to prepare the case.

Finally, I am very worried by the fact that, by and large, these reforms will be made by regulation, thus sidestepping Parliament. In addition, there is the matter of the timeframes I spoke about, the designation of safe countries, the assisted voluntary returns program that I did not have time to talk about, and so forth.

Yesterday's news reported on the case of a sick, pregnant woman, locked in prison and waiting to be deported. The government sometimes lacks compassion. Therefore, we are very reluctant to give it carte blanche. For that reason, we are asking the minister to submit the regulations in full before proceeding with a clause-by-clause analysis in committee. Thus, when we vote on the bill, we will at least be familiar with the proposed regulations.

I will be pleased to answer my colleagues' questions.

[Jason Kenney, Conservative, Minister of Citizenship]

Madam Speaker, I wish to thank my counterpart from the Bloc Québécois for his comments. I find his remarks on immigration issues quite good. We always act in good faith. I commend him on his desire to see the Standing Committee on Citizenship and Immigration conduct a serious study. I have already made a commitment to the hon. member for Vaughan to be open to any reasonable amendment that might be made to the bill. That having been said, we must make sure that the final piece of legislation will be in keeping with our desire to have an efficient and fair system.

I would like to remind the member that the backlog in the asylum system is a permanent one. It has averaged 40,000 claims over the past decade. There is nothing new about it. The reason why members of the IRB have experienced some problems is that a new pre-screening was introduced, which works very well. As the hon. member knows, the membership of the refugee protection division of the IRB is almost complete.

Finally, I would be prepared to table some draft regulations before the committee so that it can examine them.

The member commented on the discrepancies in decisions from different IRB members. The chairman of the IRB tells me that is because some members focus on certain cases from certain countries of origin and others from other countries of origin.

Our number one source country right now is a new democracy from which 97% of the claimants are withdrawing their claims subsequent to making them. Last year, of 2,500 claims made, only three were accepted as being in need of our protection, so there are some wide discrepancies.

In any event, I want to thank the member for his constructive spirit. I look forward to working with him in good faith at committee.

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

Madam Speaker, the minister can count on my help. The Bloc will be proposing amendments to improve this bill.

I would like to talk about inconsistent decisions. In my opinion, they are the source of the potential problems and abuse that the minister is so worried about. When I meet with immigration lawyers in Montreal, they always tell me the same thing. When their client asks if there is a possibility of being accepted, they say that they do not know, that it depends on which IRB member processes their request. Some members make very favourable decisions while others make unfavourable ones. It is the IRB lottery. It is the luck of the draw. If you get a certain member, you are lucky. If you get a different one, you may not be so lucky. It does not necessarily depend on your country of origin. I mentioned the two brothers who came from the same country with the same story but who got two completely different decisions.

This inconsistency might encourage people to take a chance. Then, if that does not work, they look at other alternatives. A refugee appeal division ensures that the decisions are consistent and that case law is built up. Lawyers could tell their clients from the outset whether or not they had a chance, either initially or on appeal. For it to truly work, everyone has to have access to the refugee appeal division, including those coming from what ministers consider to be safe countries.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I thank the member for his input. He is certainly knowledgeable. I want to ask him about the input I have received from a couple of agencies. Certainly, it has to do with the timing and it also has to do with the safe country of origin issue.

The solution to this may be found in committee if it is deemed that it is not beyond the permitted scope of the committee. Once a bill is passed at second reading and gets approval in principle, it may close the door in terms of the latitude to make certain changes at committee. It was asked, and I wanted to make that representation, in good faith, that because of the important subject matter of this bill, the bill be referred to the committee before second reading so that all of these facts and discussions could be taken into account by the committee in determining the propriety of certain changes to be proposed. That would have been desirable, but that did not occur.

Does the member believe, therefore, that if we pass this bill at second reading we will be able to address some of the substantive issues at committee with the concurrence of the minister?