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.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

I'd like to call the meeting to order and welcome everyone here.

As you know, pursuant to the order of reference of Thursday, April 29, 2010, the order of the day is Bill C-11, an act to amend the Immigration and Refugee Protection Act and the Federal Courts Act. I kindly ask all members to take their seats.

Yes, Mr. Coderre.

[Vanessa Taylor, Co-Chair, Centre des femmes immigrantes de Montréal]

Good evening.

I would like to start by saying that the Immigrant Women's Centre of Montreal applauds the present government's efforts to amend the refugee determination process. We understand its priorities in making the asylum system more efficient.

I agree with the minister that a near-58% refusal rate of asylum seekers over the last two years is wasteful, and an average waiting period of 19 months before first hearing is unacceptable. It is therefore vital to encourage the institution of a system that increases Canada's refugee acceptance rate, while significantly reducing delays.

However, it is our position that this reform should not be carried out at the expense of fairness. More specifically, it must not favour what some people might refer to as bona fide refugees--like those who are presently in UN camps, for example--over asylum seekers who may seem more suspicious and opportunistic.

We should not be privileging refugees overseas solely on the basis of a perception that they can more easily be processed and can better prove their claims of persecution to be well founded. If we sacrifice the lives of asylum seekers, who would otherwise become accepted refugees, by making it more difficult for them to adequately present their cases, it might prove to be more economical, but the cost would still be too high.

After careful review of Bill C-11 we find that certain of the proposed changes would especially handicap those seeking asylum from gender-based persecution.

I would like to express my concern about the following two proposed amendments. They are subclause 11(2), replacing subsection 100(4); and proposed subsection 161(1), making a preliminary interview mandatory within eight days of being referred to the Immigration and Refugee Board, followed by a subsequent hearing no more than 60 days following that interview. The other one is clause 12, adding a new subsection 109(1) designating countries of origin. Citizens would not be eligible for an appeal at the RAD.

Women, in their country, may suffer specific types of violence related to the fact that they are women, despite an appearance of democracy in those countries. Spousal abuse, trafficking in women and young girls, sexual mutilation, degrading widowhood rites, forced marriage, crimes of honour, sexual orientation and the maintenance of women in the state of minors are a few examples of that.

An obligation for these women to submit to time restrictions, with regard to an interview in the 8 days following the filing of an application for asylum and the first hearing within 60 days following that interview, as proposed in subsection 11(2) of the bill, could place serious constraints in view of the content of the experience of these women.

As some members of Parliament have already pointed out, for a woman who, for example, has been the victim of sexual violence committed by figures of authority and for whom it is impossible, in her country of origin, to even talk about that situation, it will be much more difficult to speak frankly about her experience to an official, particularly since she may not have had enough time to obtain good legal advice.

We understand that, if the official in question finds that the applicant needs more time to prepare psychologically for the interview and hearing, it would be possible to extend the time periods. However, how do you ensure that that official can in fact come to that conclusion if the woman in question has no one to defend it? Can we count on that official being able to read her thoughts? We don't think so.

That's why we strongly suggest to the authors of the bill, first, that they clarify the utility of this interview before introducing it, more specifically with regard to the record of personal information which, we believe, already serves the purpose that such an interview might have.

Second, if the justifications prove valid, we emphasize that the time period granted is sufficient to obtain the assistance of a legal counsellor.

Lastly, the creation of a list of designated countries, in our view, could result in discrimination against women. A list of these designated countries, from which some women seeking asylum come, would have the consequence of denying them access to appeal or a fair and independent hearing that would completely take into account injustices committed on the basis of their gender.

A possible solution to this problem would be to clearly establish the regulations regarding rigorous criteria for selection of designated countries, which would take into consideration the situation of women in those countries.

However, to ensure that our refugee determination system is fair for all, we ask that subsection 109(1) be repealed. This does not mean we aren't sensitive to the problem of countries that generate a high percentage of asylum refusals, but that we believe instead that the necessary time must be taken to propose an alternative solution that wouldn't cause harm to a given group.

Women asylum seekers often have no other possibility than to leave their country and to seek protection at the port of entry. We are seeking refugee status for women who are persecuted because they are women and because we are opposed to the twofold violence of an application processing system that would discriminate against women. That, in our view, would be a violation of the Canadian Charter of Rights and Freedoms and of the Geneva Convention.

Women who file a valid claim based on gender and individuals who file a claim based on sexual orientation and sexual identity will be major victims of this bill—

[Raoul Boulakia, Lawyer, As an Individual]

All right, and thank you for the opportunity to speak before this committee.

I'm going to state first of all that I agree with the brief that the Refugee Lawyers Association has presented, and given that there is so much to speak about in this bill, I'm just going to pick a few topics and not try to cover everything.

I agree with Professor Showler that the most important component of the system is the decision-maker up front. You want to have high-quality decision-making at the outset, which is what's going to ensure the integrity of the system, fair decisions, and efficiency, because decision-makers who are qualified and judicious actually do tend to be more efficient overall.

Although this bill is put forward as one that will reform the refugee determination system, I don't believe it really comes to terms with the whole problem of the appointments process. We're going to continue the existing GIC appointments process in what will be the Refugee Appeal Division, and the appointment process for first-level decision-makers isn't truly set out in a transparent way for Parliament to understand at this point. If the board does wind up, as rumoured, supervising some hiring process through the public service, there are no minimum criteria for the qualifications of people who are hired. Qualifications are very easily claimed without a serious vetting of whether people truly are going to be judicious decision-makers.

I believe that Parliament should come to terms with the issue of ensuring a truly arm's-length committee that does genuinely vet the people who are being appointed. This should be across the board at all levels of appointments to the tribunal. In Ontario, the Ontario Court of Justice has an appointment process that is respected and where the committee is made up of people who are truly at arm's length from government. Then the number of selections presented to government, to the minister, is so limited that there isn't the same kind of scope for not appointing the top candidates, as there is now.

With respect to the proposed process, the first aspect of the process will be an interview conducted at the board. Although it's professed that it should be an eight-day interview, I find it hard to believe that the board will be able to stick to that. We've seen this type of problem before. If it is truly done quickly, then, as Professor Showler has stated, it could be quite unfair.

The desire to control what the claimant states and have their first statement be one made to an official at the hearing I think is problematic. It's going to impair people, particularly the most vulnerable, from disclosing all of their information. I'm concerned about how that will impact on people as they progress through the refugee system.

The appeal system does not allow people to prove that they were telling the truth in the first place. That's a grave limitation. It only allows evidence that's quite limited. You have to basically adopt the same test that exists under the current PRRA, the pre-removal risk assessment model, where people often have been telling the truth, but if it's deemed that they should have known better or could have thought of presenting the evidence before, they're barred from presenting it. I think the purpose of the appeal should be to ensure that the appeal board does get the truth.

With respect to legal aid, at present the government and provinces have a cost-sharing agreement, which has essentially been a compromise that has ensured that legal aid has continued for refugee claimants.

In Ontario last year, about half of the funding for legal aid came from the federal contribution. Legal Aid Ontario is concerned about the cost implications of Bill C-11. Just today, they told me that they're coming up with cost estimates of what they believe Bill C-11 will imply for them, and they seem to believe that costs could go up by 50% from last year's totals.

Right now the cost-sharing agreement is going to expire in March 2011. This new system is clearly going to impose some new costs. Also, the CBSA is going to get substantially more resources and the hearing system is going get more resources, which is going to lead to more need for representation on the other side, and I am concerned that the bill does not balance that out or ensure that the provinces will receive adequate funding or encouragement to continue with their legal aid funding. A mulit-year commitment would be helpful to give greater stability to our provincial legal aid plans.

I'll leave my comments at that and invite questions.

[The Chair, Conservative, David Tilson]

This is the Standing Committee on Citizenship and Immigration, meeting number 15, on Tuesday, May 11, 2010. The committee will be sitting between 6 p.m. and 9 p.m.

Pursuant to the order of reference of Thursday, April 29, 2010, we are discussing Bill C-11, an act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.

We have three witnesses with us today. The first is here in Ottawa.

Oh, there's another person there. I assume Professor Showler will introduce her.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

But the United States has engaged in a war in Iraq that was not sanctioned by the United Nations. Some people who were born in the United States and some people who are not Muslims but are Caucasians do not want to engage in the war, and they have fled the war as they did back in the days of the Vietnam War. These people are here in Canada and they're fleeing a situation about which they say, “It goes against my religion to engage in war. It goes against what I signed on to in the war. It goes against what I thought this war was about, and for me to be sent back for a second tour, or else whatever....”

Shouldn't they be given a chance? But if we go down the scheme of Bill C-11, these people will not have the opportunity. Am I correct in this?

[Mitchell Goldberg]

But the Habs are the Canadians. I hope to think I speak for all of Canada now.

On a more serious note, I'm going to tell you what the Canadian Bar Association likes and does not like about Bill C-11. We support the principles of fast and fair. We think that streamlining the process is very important. We also think that an appeal on the merits is essential for fairness. The CBA has been on record about this issue for many years, advocating that section 110 of the Immigration and Refugee Protection Act be implemented. We congratulate the government on putting this in the bill.

We are also very pleased to see that there will be more resources for the refugee determination process. However, we also have serious concerns about sacrificing fairness. We do not think that you need to sacrifice fairness to have fast decisions and fast removals.

To begin with, the designated list unnecessarily politicizes the process. As Ms. Valiani said before, it has very serious consequences, in that people who are deemed to be on this designated so-called safe list would be denied this very important, very crucial appeal on the merits for life-and-death decisions.

We also, in our submissions, make suggestions to mitigate the damage this would cause. If this committee and Parliament absolutely insist on this process that we disagree with, in the alternative we think at the very least the committee that selects designated countries must be composed of human rights experts, and the criteria for establishing whether or not a country should be on that list must be completely based on human rights and state protection criteria, nothing else.

Just as we are against politicizing access to the refugee appeal division, we also oppose politicizing appointments. As you know, the Canadian Bar Association, with many other groups, has strongly opposed anything that deviates from appointments based on the merits. We think that the appointment process is still unnecessarily political right now, especially the reappointment process to the Immigration and Refugee Board.

At the very least, we think that the refugee protection division should be allowed to select the best possible candidates out there. And that means opening it up beyond the civil service. We have no problem with members being selected who are civil servants. There are many excellent members of the immigration division right now who come from the civil service, but we also should allow others who qualify to contribute their skills.

We are also very concerned about a part of this bill that I don't think has received any attention. Quite frankly it's even hard for immigration lawyers, or for anyone, to figure this out. We have struggled with understanding it. In our opinion, the bill provides for a very unbalanced, unfair, and unexplained stage implementation.

There are parts of the bill that could go into effect in up to two years after proclamation, and other parts of the bill that could be implemented immediately. We're very concerned that this could mean that the bar on applications on humanitarian grounds and pre-removal risk assessments could be implemented immediately, whereas the implementation of the long-delayed refugee appeal division could have to wait for up to two years. This would create a serious injustice for the people who are affected by this.

Like many others, we're also concerned about the delays that are not part of Bill C-11. The government has announced, as Ms. Valiani stated, that there would be an initial interview in eight days and a hearing that would be immediately scheduled 60 days later. As we said before, we are extremely concerned about the slowness of the existing process. Refugees need to have certainty. They need to have a fast decision.

Many of them are waiting to be able to bring their family members, their children, over to Canada. So of course we agree with speeding up the process. But we think that some minor adjustments can be made, such as 28 days for the initial interview and four months for the hearing. It's not a big change from what's currently being proposed, but we think it will help refugees who are very vulnerable and it will help people to be more likely to engage competent counsel.

Finally, we are concerned about the bar on temporary residence permits and also humanitarian and compassionate applications. On this last point, I'm going to talk a little about the bar on H and Cs, humanitarian grounds applications.

The humanitarian grounds applications are there for a good reason. When we argue before the United Nations whenever there's criticism of certain aspects of the system, or when there's concern about how to protect the best interests of children, for example, reference is always made by the government—the Liberal government, the Conservative government—that we have this process. It's called humanitarian grounds applications. It catches situations that fall through the cracks. It prevents injustices.

What's particularly noteworthy here is that humanitarian grounds applications do not stop removals. Unlike pre-removal risk assessments, there is no administrative bar on removals once a humanitarian grounds application is filed. On the other hand, their removal of H and Cs for refugee claimants will lead to human rights violations. I'd like to give you one example from my own law practice. There are many examples I could give, but in the interest of time I'd just like to mention a situation that's one of many.

I had these clients who were a lovely African family. There were two children and their mother and dad. The board member from the refugee protection division recognized their claim, recognized that they feared persecution and that they had gone through atrocious past persecution because of their political opinion. They were members of the opposition party. However, based on a technicality, the member refused the parents. Why? Because they had a double nationality. They were also citizens of another African country. But the children were only citizens of one country. So the member accepted the children. They were recognized as refugees, but the parents were denied.

Under what's being proposed in Bill C-11, the parents could very well be removed back to the country, while the children--and these were minor children--remained in Canada. Fortunately, they had the right to make an H and C application. They did, they were accepted, and I'm happy to say that the entire family is here together in Canada.

I can also think of many situations of women--and their children--who are victims of domestic violence by their husbands here in Canada. This has nothing to do with the Geneva Convention on refugees. It doesn't meet the refugee test, but these people are in a very vulnerable situation, and H and Cs are the only way to give them protection.

[Kerri Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association]

Thank you, Mr. Chair.

The Canadian Bar Association is very pleased to appear before this committee today on Bill C-11, the Balanced Refugee Reform Act.

The Canadian Bar Association is a national voluntary association with about 37,000 members across the country. The citizenship and immigration law section comprises about 1,000 lawyers, with expertise in all areas of citizenship, immigration, and refugee law. The primary objectives of the organization are improvements in the law and in the administration of justice. It is through this optic that we make our comments here today.

For the purposes of our appearance today we have circulated to you the executive summary of our larger submission. We'll also be providing the larger submission to you in due course.

I'm going to ask Mr. Mitchell Goldberg, who is an executive member of the citizenship and immigration law section, to make substantive comments about the bill.

[Salimah Valiani]

Thanks very much.

We really appreciate the opportunity to give a deputation regarding Bill C-11, on the changes to the refugee determination system.

I work at the Metro Toronto Chinese and Southeast Asian Legal Clinic. We are a clinic that serves about 3,000 clients a year. Immigration law figures at the top of the types of files we open.

We offer legal services in Cantonese, Mandarin, Vietnamese, Khmer, and Laotian .

I would like to make points around four areas of the reform. First of all, we are very enthusiastic that there is a proposal to implement a refugee appeal division. Errors inevitably occur in the first instance, and an appeal on merits is necessary to correct errors.

We would urge that a merit-based selection process for the refugee appeal division members be laid out such that political appointments are avoided and high-quality decision-making becomes the basis for selection for the refugee appeal division.

Second is the area of humanitarian and compassionate consideration. Humanitarian and compassionate grounds are a necessary recourse to consider human rights issues including, for example, the best interests of the child. The distinction between what is a well-founded fear of persecution, which is the convention refugee definition, and very serious hardship, which is the test for a humanitarian and compassionate grounds application, is not black and white but instead grey.

One Immigration and Refugee Board member may accept a claimant as a refugee based on the same facts upon which another board member may refuse the claimant. How then are we to advise a client to choose between making one type of application and the other?

We have many cases of people from China who are accepted under humanitarian and compassionate consideration after being refused under the refugee definition--for example, people arriving for fear of persecution under the one-child policy.

Humanitarian and compassionate consideration is a safety net for those not qualifying as refugees but still facing disproportionate hardship if returned home.

The new system would likely drive such clients underground for a year or more as they wait to make an application on humanitarian and compassionate grounds. This would be detrimental to both clients and the system as a whole, and would waste precious time during which people in need of a safe home in Canada could instead begin the settlement process.

The third area I would like to touch on is the question of an interview after eight days in Canada and a hearing after 60 days. Most of our clients obtain legal aid certificates in order to be accompanied by a lawyer through the refugee application process. It is completely unfeasible to expect that these certificates could be obtained within the first eight days of arrival in Canada.

Claimants then without legal aid would have to represent themselves or become subject to representation by unregulated consultants who are often very unreliable.

Our clients additionally have language barriers, and it would be virtually impossible to arrange language interpretation services within eight days of arrival. If interpretation is inadequate, then the stories of claimants' risk become distorted, and that prevents a fair process.

In cases from China we have made claims on behalf of minors arriving in Canada unaccompanied. These are often complex cases involving trafficking and the sex trade. Such cases are on the rise. In the month of April, the McCarthy Tétrault Unaccompanied Minors Project received its 100th client.

Given the experiences of fear and trauma involved, we again doubt that effective interviews could be carried out within the first eight days of arrival in Canada. In many cases, 60 days to gather evidence for claims--that is, to prepare affidavits, translate documents, and obtain expert reports--will also be too little time.

In addition to adequate time to prepare for interviews and hearings, we need accountability measures to assure that the rights of unaccompanied minors and other claimants who have faced trauma or torture are protected in the system.

Finally, I have a point on the safe countries designation. The use of safe country lists politicizes the refugee system, and this thereby defies the very principles of refugee protection.

Refugee determination requires individual assessment on a case-by-case basis in order to guarantee fairness. Fairness will be denied to claimants from countries designated as safe, based on the Canadian government's subjective judgment of the socio-political situations in their countries. There are no objective or quantifiable criteria by which to determine countries as safe, and patterns of human rights change very quickly in countries.

This is likely the reason why the bill does not contain a definition of safe countries, which again underlines the political nature of labelling countries as safe and then denying full rights, especially the right of appeal, to claimants from those countries.

Those are the major points we would like to make. The emphasis on a fair process for all claimants comes back to the fact that if a fair assessment is not made, these are people who risk death and injury if they are returned home. So we would urge the committee to take these points into consideration, and would like to submit our brief in writing.

Thank you.

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

There is another issue we have not had much time to address. Under Bill C-11, failed claimants would no longer be able to use a PRRA, a pre-removal risk assessment, to protect themselves against possible deportation if the situation had changed.

I know that the existing mechanism is cumbersome and not very efficient. What would you suggest that would be more efficient?

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

Thank you, Mr. Chair. Thank you all for being here.

Ms. Dench, in your presentation, you talked about an alternative mechanism that would expedite the procedure in cases where it is suspected that there is an organized mechanism to bring people here, often to their own detriment. I believe you are suggesting that, instead of having designated countries, the Canada Border Services Agency have the authority to identify a certain number of case it considers potentially suspicious and to ask the IRB to process these cases on a priority basis.

Is that what you are proposing, and could you explain why you feel it would be better than the scenario in Bill C-11, both for refugees and for the system itself?

[Amy Casipullai, Coordinator, Policy and Public Education, Ontario Council of Agencies Serving Immigrants (OCASI)]

Good afternoon.

The Ontario Council of Agencies Serving Immigrants, OCASI, thanks you for this opportunity to speak to you on this very important bill. I will unfortunately not be able to share with you in detail all of our concerns with the bill in the time that I have been given, pretty much like the other witnesses. I will therefore focus on some of the areas that are of greatest concern to our member agencies. We will be sending you a written submission on this shortly.

Bill C-11 is an important piece of legislation that would significantly change Canada's refugee protection system and have a profound effect on refugees. It deserves careful study and thoughtful consideration by this committee. Canadians deserve the time to be heard on this very important issue. One of our biggest concerns is the speed at which this bill is being pushed through the parliamentary process, and even through the committee process.

One of the things that refugees and immigrants arriving in Canada learn very quickly is the extent to which Canadian residents are allowed, and even encouraged, to have a say in the decision-making process of various levels of government. One of the things many have said they appreciate is being able to appear before a committee such as this, and many have appeared before you over the years to share their experience and have a voice in the discussion on important laws that would affect them and would affect future residents of Canada. We call this “civic engagement”, and it's something that we and all levels of government have actively promoted.

The process for Bill C-11 unfortunately is going to be one where there is little or no consultation and where there is little or no opportunity for those actually working with refugees to have a say.

OCASI is the umbrella organization for immigrant- and refugee-serving agencies in Ontario. Our member agencies include those that work with refugees who have experienced torture, that work with those from Mexico, Hungary, and other countries who arrive here seeking Canada's protection and file a refugee claim. They include organizations such as the Canadian Centre for Victims of Torture, recognized worldwide for their work with torture survivors; organizations such as the Roma Community Centre, which has worked for years with Roma refugees from Hungary and other countries; and organizations such as the FCJ Refugee Centre and many others that work with those who arrive from Mexico and other countries, seeking protection in Canada.

Our member organizations are working on the front lines with those who would be profoundly affected by the changes proposed in this bill. They can tell you first-hand how those changes would affect their clients. Unlike other opportunities, when important changes to Canada's immigration and refugee protection laws are before you for consideration, they will not have the opportunity to appear before you to share their experience.

On behalf of these member agencies and others, OCASI would like to tell you that it's not too late to take the time to hear from these organizations and others that work with refugees who would be deeply affected. As the standing committee, you're one of the critical components of our parliamentary system, intended to give community organizations and ordinary people a chance to be heard on very important concerns in a way that is fair and transparent.

In regard to the bill, we welcome the minister's stated intent to introduce a reform that is fast and fair. We welcome the creation, at last, of a refugee appeal division. We welcome the spirit in which it is introduced, the recognition that refugees, too, deserve a fair appeal process. The possibility of introducing new evidence is made available with what's proposed in this bill. Unfortunately, the appeal would not be available to all claimants from those countries designated by the minister as safe countries.

The Canadian Council for Refugees and Amnesty International have shared with you some of their concerns with regard to the proposed safe country list, and OCASI echoes those concerns.

We are particularly concerned about the potential impact on those who are seeking protection because of persecution on the basis of gender or sexual orientation, and who may be from other countries that are potentially deemed safe by the minister but who are still genuinely at risk. We are concerned that this process would become highly politicized and would then have an impact on refugees, with possibly tragic consequences.

We welcome the minister's proposal to speed up the process for those waiting to have their claims resolved. That's a good thing. Our member agencies can speak to the effect on individuals having to wait for years to have their claims resolved, and the impact of that wait. Therefore, we agree that it is a good idea to speed up the process, but our concern is that fairness could be sacrificed for speed.

Many claimants come from a system or a background where they may be unfamiliar with our refugee hearing process. They may be in circumstances where they are still terrified, in shock, likely not ready to share with a complete stranger the details of why they need protection. Many may not be able to recall the details, may not be able to put what happened to them together in a coherent way.

The point is that each circumstance would be unique and would deserve full and fair consideration of the merits, and we fear that the fast process would not allow that to happen.

Perhaps there may be some claimants who would be ready for an initial hearing within eight days, but there would definitely be some who wouldn't. Are we going to bring a bill, a one-size-fits-all system, when lives are at stake? Would it not be better to err on the side of fairness so that each person seeking protection has a fair chance to tell her story or his story?

Our second concern with this is that the decision-maker at the first hearing would be a civil servant rather than someone appointed by cabinet. The problem is that civil servants would lack the independence that is required.

Assigning the refugee determination to civil servants is fundamentally problematic because they don't have independence, but limiting the appointments to civil servants would also exclude some of the most highly qualified potential decision-makers from a different range of backgrounds who would be able to bring their perspectives to the decision-making process, and this would affect the quality of decisions.

This is something that we have drawn from the materials prepared by the Canadian Council for Refugees, of which OCASI is also a member. There is much more that we could say, but again, the limitation is time.

Unfortunately, Bill C-11will do nothing to address the current delays and backlog that's already in the system, presumably the reason it's being introduced. It will only deal with the claims filed in the future. Therefore, while we welcome the minister's proposal to address some of these major concerns, we would like to suggest that the problem with the current system is that it's starved of resources. So we welcome the minister's suggestion that he bring more resources to the new system that is proposed to make it work better. What we would like to know is why would you not do the same for the system that is currently in process?

We ask you as a committee to consider investing those resources in the current system while you take the time to study what is proposed with Bill C-11, to give refugees a fair chance.

[Michael Bossin, Chair, Anglophone Section, Amnesty International]

I want to suggest an analogy that's appropriate to the designated country list. Imagine a neighbourhood where there's a lot of crime, where studies have been done that show that 95% of everyone from this neighbourhood who is charged with a criminal offence is convicted. So the government decides to address this issue, and it brings in a law that says that people from this neighbourhood who are convicted of a crime won't have an appeal. They'll have their trial, they'll have their day in court, but if they lose, there's no appeal. That will reduce crime, it will discourage people from that neighbourhood from committing crimes, and it will unclog the appeal courts, because these people will no longer have an appeal.

On the surface it sounds pretty good, but I would suspect that no one on this committee would ever vote in favour of a bill like that. Why? Because it's discriminatory. Because it's unfair. Because it treats people differently based not on what they've done, but on where they come from.

We all know that under that system, even if 99 out of 100 people from that neighbourhood are going to be found guilty, one day an innocent person is going to come before the court and be found guilty, will go to jail, won't have an appeal, and an injustice will have been done. For that reason alone, I would suggest that kind of law is unjust.

Bill C-11 follows the very same logic, yet we are seriously considering passing this into law. Bill C-11 creates a two-tiered system for refugees, those who come from the countries with the good reputation and those who come from the countries with the bad reputation, and they are not treated the same. They are not treated differently because of what they did, they're treated differently because of the national country of origin--where they come from.

Of course, they still get a judicial review, but I would suggest that if a judicial review were an appropriate remedy, this government would not be proposing implementing the refugee appeal division for most claimants.

Amnesty International is in the business of monitoring and reporting on human rights abuses. Every year, people would like us to come up with a top 10 list of worst countries. I think if we did that, we'd be very popular and we'd probably raise a lot more money than we do now, but we don't do that. In our brief, we set out a number of good reasons why to do so is simply an unreliable method of determining which country is safe and which country is not safe. To do so would be irresponsible and unreliable.

Amnesty International is all for improving our refugee determination system.

Like all of the NGOs who are appearing before you today, we would happily work together with this committee and with this government to make that happen. But we are not all for making things worse.

We strongly urge this committee to take a deep breath, to consider the implications of this bill, and to reject what is unfair, discriminatory, and ill-considered. Take as much time as it takes to get it right.

[Claudette Cardinal, Coordinator, Refugees, Canadian Francophone Section, Amnesty International]

Good afternoon. We want to thank the Standing Committee on Citizenship and Immigration for giving us the opportunity to share our concerns about Bill C-11, which is very important to people seeking asylum in Canada. We have only one presentation, but Mr. Bossin will speak on behalf of the Canadian Anglophone Section of Amnesty International and I will speak on behalf of the Canadian Francophone Section.

Our joint document will be submitted to you in a few days. Today, we want to talk about two points we are particularly concerned about: the designation of safe countries of origin and the rush to hear refugee claimants.

Under Bill C-11, a refugee claimant would be interviewed eight days after arriving, and the hearing would be held 60 days later.

We agree that refugee claimants currently wait too long for a hearing and a decision. But speed should not be the overriding concern in the amended act. What is needed is an equitable process, and we are afraid that speeding up the process, which is what Bill C-11 would do, will lead to incorrect negative decisions that could violate Canada's international obligations and put refugee claimants' lives at risk.

Under the current system, refugee claimants have the time to complete the personal information form including their narrative, information on their education and work experience, the names of their family members, previous places of residence and so on. Even more importantly, claimants will have the time to prepare a detailed account of why they are claiming refugee status, with the help of a competent legal advisor who knows the law and what constitutes evidence.

Often, claimants have to obtain medical, legal, police and other documents from their country of origin and have them authenticated. They must also have those documents translated here. Sometimes they have to find an expert witness. All that takes time. In addition, a very human factor has to be taken into account, and that is that claimants who have suffered rape, sexual abuse or torture will not feel comfortable confiding in a stranger they just met, if they are lucky enough to find an advisor quickly. Disorientation is another factor that has to be taken into consideration. Someone who has been here for just eight days and does not speak the language may not understand much. And more often than not, that person also needs an interpreter.

In addition to the short time frame, we are concerned that the bill does not clearly describe the purpose of this initial interview. Is it for information gathering only, or is it a substantive interview? And the parameters of the second interview—the hearing—are not set out in legislation, but in the regulations or even just in internal procedural rules.

Our concerns about the initial interviews apply to the hearing as well. Our concerns are set out in more detail in the document that is to come. We have three recommendations on this point: do away with the initial interview as described in the bill; keep the personal information form or change it to make it simpler; add the case to the IRB schedule when the person is ready to proceed or within six months of the case referral.

Now, Mr. Bossin will share his concerns about designating safe countries of origin.

[Wanda Yamamoto, President, Canadian Council for Refugees]

Thank you.

We welcome the opportunity to address you on this important bill that will profoundly affect refugees seeking Canada's protection. We have submitted a detailed brief of our comments on Bill C-11 and recommendations for changes.

Unfortunately, we will not have time today to discuss our concerns more than superficially. The speed with which the committee is rushing through the study of this bill undermines any capacity to have the thoughtful review that is merited. We remind you that you are dealing with a complex process that, if done wrong, can and quite likely will result in people being sent back to persecution and even death.

Unlike most proposed reforms to the immigration legislation, the government in this case chose not to consult externally. Our expectation was that members of Parliament would therefore recognize the particular need for a thorough study. We have been hearing strong expressions of shock and disillusionment from our members when they realize how rushed your hearings are.

Turning to the objectives of refugee reform, we believe they are clear and widely shared. We need a system that recognizes refugees quickly and discourages people who don't need protection from entering the system, or deals with their claims efficiently if they do enter it. Bill C-11 contains some positive elements, but also several serious faults that would put refugees, particularly the most vulnerable, at risk of being deported to persecution. Some provisions would also make the system more inefficient. A number of provisions would likely lead to a great deal of litigation.

On the positive side, Bill C-11 offers most claimants access to the refugee appeal division. An appeal on the merits is long overdue and absolutely necessary to ensure that mistakes are not made. We are also painfully conscious of the very long delays currently faced by refugee claimants waiting for determination, and we support the goal of speeding up access to a hearing.

On the negative side, the introduction of the safe or designated countries of origin is, in our view, a serious mistake. We sympathize with the objective of addressing patterns of unfounded claims, but we believe this is the wrong solution. If adopted, it will lead to injustice for refugees in need of protection. It may also cause unintended practical problems that will undermine the goal of efficiency.

Treating claimants differently based on nationality is wrong because it is discriminatory. Refugee determination requires individual assessment of each case, not judgments on countries.

The idea of safe countries of origin is drawn from Europe, where it has been extremely controversial. Many serious problems with refugee determination in Europe recently led to the adoption of the Council of Europe's resolution on improving the quality and consistency of asylum decisions, in which the parliamentary assembly, in Resolution 1695, called on member states to refrain from using lists of safe countries of origin

to ensure that each asylum case is examined individually with rigorous scrutiny of the particular situation of each applicant with respect to the country in question.

Under the proposed bill, nationals of designated countries would be denied access to an appeal on merits. They would also face a bias against them even at the first level, since decision-makers would be aware of the government's judgment on the country. None of this would matter if we could be sure that no individuals of designated countries would be refugees in need of protection. However, experience teaches us that, on the contrary, there are likely to be refugees among those affected.

There are few, if any, countries in the world that are completely safe. In countries that generally appear to be safe, women often nevertheless suffer serious gender-based persecution, and there are grave abuses against gays and lesbians.

The minister has said that his intention is to use these provisions to target claimant groups where there are concerns about abuse of the system. Yet if we look at the experience of recent years, we generally find that there are individuals within the groups who do very much need protection, even if most do not.

Take the Mexican claimants. They have come to Canada for economic reasons, but a significant number have fled for their lives. There are serious and widespread human rights abuses occurring in Mexico. In 2009, 516 Mexicans were accepted as refugees by the Immigration and Refugee Board. Denial of a fair process to these claimants may lead to their forced return to persecution, in violation of human rights law.

Depriving these claimants of an appeal is shortsighted if the goal is to have a smooth-running system. Often these claimants are among those who most need an appeal due to difficult issues of fact and law, such as the availability of state protection. This is the case, for example, with claims from Mexico where the Federal Court has repeatedly overturned decisions of the Immigration and Refugee Board because of a failure to apply appropriately the test of state protection.

The advantage of an appeal-level decision is that it could set a precedent for future decisions, allowing better and more consistent decision-making. It is possible that excluding claimants from the appeal may in fact be more expensive and time-consuming than granting them access to an appeal, since the Federal Court is likely to feel the need to scrutinize more closely the cases of claimants denied an appeal.

We note that there have been suggestions here that the legislation include criteria for designated countries. In our view, this would be more window dressing that would in no way redeem a fundamental flaw in the proposal.

I will pass it on to Janet now.

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen.

This is the Standing Committee on Citizenship and Immigration, meeting 14, Tuesday, May 11, 2010. The orders of the day, pursuant to the order of reference of Thursday, April 29, 2010, are to consider Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.

For the first hour, we have a number of witnesses, a number of guests.

From the Canadian Council for Refugees, we have Wanda Yamamoto and Judy Dench...or not “Judy” Dench--I'm thinking about somebody else, sorry about that--but Janet Dench, executive director.

From Amnesty International, we have Claudette Cardinal, who is the coordinator of refugees, Canadian francophone section; and Mike Bossin, the chair of the anglophone section.

Good afternoon to all of you.

Our fourth guest is not present, but I'm going to assume he will be soon.

Each of you has up to seven minutes to make a presentation.

We will start with the Canadian Council for Refugees, and I trust that one of you will speak.