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.

Protecting Canada's Immigration System Act

[Mike Sullivan, NDP, York South—Weston, ON]

Mr. Speaker, a lot has been said by the government, in particular about this problem of 95% of the refugee claimants from European countries not bothering to come for their hearings. That is what Bill C-11, in the previous Parliament, was supposed to fix, and will fix as of June of this year.

With the exception of giving the minister the power to determine which countries are safe, why are we in a rush to do what will actually be fixed if we just let the law we passed some time ago take place? What is so urgent, when we have a law coming into place to do exactly what the government says this bill was supposed to do?

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Mr. Speaker, I am happy to stand today to add my voice in opposition to this legislation, the anti-refugee bill, and in support of the NDP amendments.

As New Democrats, we oppose the bill because we will not support the punishment of asylum seekers, and that is exactly what the bill would do.

We also believe the Conservative government should change the title of the bill to “the punishing refugees act”. The title of the bill should reflect the nature of its content. If we are to be honest with Canadians, we need to tell them what the minister is doing and the true direction we are headed under the government.

Canadians are proud of our country's tradition of providing protection for those in need. With the passing of Bill C-31, the Conservative government will effectively be killing this tradition.

For over two weeks, the Standing Committee on Citizenship and Immigration heard from witnesses who spoke on the content of Bill C-31. Witness after witness told us this legislation was fundamentally flawed, unconstitutional and concentrated too much power in the hands of one minister.

The well-informed opinion of these witnesses should not be taken lightly. We are talking about witnesses representing Amnesty International, the Canadian Bar Association, the Canadian Council for Refugees, the Canada Research Chair in Global Migration Studies and front-line workers who provide legal, medical and psychological support to people who have fled persecution. These are experts in this field. They know far more about this topic than many in this room. Therefore, their testimony should be taken seriously and simply not ignored, which is exactly what the government is currently doing.

As I stand in the House, a key component of our highly respected democracy, with plush carpets and clean water, food to eat, peace in our country, I am reminded that elsewhere in the country and around the world people are not so lucky.

Right now, at this very moment, people are being persecuted, are experiencing discrimination, are living through conflict, public unrest and general instability, and some are forced to make the decision to flee the only home they have ever known, fleeing for their lives and the lives of their loved ones.

People flee their country because they are desperate and they have no other option if they want to ensure the safety of their families. However, with the passing of Bill C-31, if they come to our country as asylum seekers, much like my father did, depending on their means of arrival and undefined number of people they arrive with, instead of being treated like human beings they will be treated like criminals, treated as guilty until proven innocent. We all know that is not the Canadian standard.

The bill would punish victims of persecution and victims of human smuggling. It would punish those who, because of a lack of money or option, would do whatever it takes to keep their families safe. I ask my colleagues in the House to empathize and put themselves in their situation. I ask them to think for a moment of what they would do to keep their partner, their children, their mother, their grandmother safe. If they needed to, would they run, flee the country that was unsafe through any means?

The Conservatives refuse to accept that our system currently works. We already capture the real criminals and deport them. The sentence for human smuggling is already the most punitive it can be in our country, life in prison and a fine of $1 million, yet we continuously hear members opposite saying that we need to take away the rights of victim in order to catch the human smugglers. The bill would do nothing to catch human smugglers. It would punish refugees and refugee claimants and not the human smugglers.

Instead of targeting the illegal smuggling rings, the Conservatives would rather arbitrarily designate some refugees as “irregular arrivals” and incarcerate all of them. Now, upon arrival, designated refugees will be held in provincial jails, handcuffed and treated like prisoners, with minimal review.

New Democrats are opposed to the measures in the bill precisely because Canada will now be known for punishing the most vulnerable and traumatized people in the world.

My constituents are concerned. Some of the refugees who were on the MV Sun Sea and Ocean Lady live in my riding of Scarborough-Rouge River. They have been given refugee protection by our government. They are making a home in our neighbourhoods, contributing to our economy and giving back to our community.

As the designated foreign national category is retroactive to 2009, these valuable members of our community who came on these two migrant vessels, along with future so-called irregular arrivals, will now be treated as second-class citizens under the new two-tier refugee treatment system that will be created.

Under the bill they, and all so-called designated refugees, would be barred from applying for permanent residence for five years. This is different from all other refugees, who are allowed to apply for permanent residency immediately. The bar would prevent families from reuniting for five years and further as they went through the already lengthy sponsorship system.

We are separating children from their parents. If fathers or mothers flee their country to make way for their children, they would now be separated from their families for a minimum of at least seven years. Children who are 13 will be young adults by the time they would see their mother and father again. Formative years of their life will be lived spent away from their parents.

Further, by the time their parents would be eligible to actually sponsor them, the children may not qualify as dependents anymore, meaning that they will now be forced to live permanently separated from their parents and parents separated from their children.

We could have made the bill better. New Democrats proposed concrete changes to the bill. It was a disappointment to the witnesses, the stakeholders and all involved when all of these good propositions that would have provided improvements to the bill were opposed by the government time and time again.

While baby steps were taken, none of the NDP's substantive amendments were adopted by the government members in the committee.

New Democrats have a better solution to our refugee and immigration system. In fact, just last year, all parties compromised to pass Bill C-11, the Balanced Refugee Reform Act. That bill was applauded by our current Minister of Citizenship, Immigration and Multiculturalism.

Bill C-31, however, ignores these compromises and includes all of the worst parts of the former Bill C-11.

What is worse is that Bill C-31 will pass before we will even have the chance to see the outcome of the changes included in Bill C-31. The government has not even allowed for the changes to take place.

One of the most troublesome measures that the Conservatives refused to revise is impossibly tight timelines for submitting an application to the Immigration and Refugee Board. The refugee system is being set up to fail. The asylum seekers are being set up to fail.

Witness after witness, including the Conservatives' own witnesses, said that these timelines were too short, that they would create incomplete and inaccurate applications. On top of that, some refugees would be refused the right to appeal their application.

We all know, unfortunately, that mistakes can be made at the IRB. The board is not perfect. With cuts to its budget and limited resources to hire adjudicators, the likelihood that mistakes will occur would be even greater. New information could come to light after an expedited claim is mistakenly processed. Without access to an appeal, this information may never be heard.

The consequences of these decisions could truly mean life or death.

Banning access to an appeal for some claimants undermines the international obligations to refugees.

A further dangerous consequence of the bill is that the power to designate a country as safe for all is concentrated solely in the hands of the minister. No country is truly safe. A country that may be safe for some residents may be unsafe for other residents.

Impartiality toward the development and maintenance of this list is extremely important. It is confusing why Bill C-31 would remove the safeguard of having a panel of experts maintain and review this list, as was decreed in Bill C-11 .

We have earned a gold standard on how we treat refugees fleeing persecution in the world. The current government is tarnishing our earned reputation. The Conservatives' changes to the refugee and immigration system will erode Canada's humanitarian reputation around the world.

I cannot support the bill and the move to a discriminatory refugee and immigration system. I cannot support the punishment of asylum seekers and refugees. That is why I oppose the bill and support the amendments put forward by the NDP.

The government needs to abandon the legislation and go back to the drawing board.

[Jason Kenney, Conservative, Minister of Citizenship]

Mr. Speaker, I am pleased to rise in the House to continue the debate on Bill C-31, the Protecting Canada's Immigration System Act.

Canada and the government are proud of our tradition of being a country of openness to newcomers and a place of protection for refugees. Indeed, since the government came into office in 2006 we have maintained the highest sustained levels of immigration in Canadian history, admitting on average over 250,000 new permanent residents each year, and maintaining the world's strongest tradition of refugee protection.

We are increasing by some 20% the number of resettled refugees that we accept, increasing the integration support that they receive, so that Canada will receive the highest per capita number of resettled refugees in the world. Of course, we also have a generous refugee asylum determination system to ensure that foreigners who come to Canada who have a well-founded fear of persecution are not returned to face danger.

However, this bill is a necessary part of our efforts to protect the openness and generosity of our immigration and refugee protection systems against those who would seek to abuse Canada's generosity, more specifically, through commercial and dangerous human smuggling operations, fake asylum claims, large numbers of which are in our asylum system, and other efforts to subvert the integrity of our immigration system and the consistent application of its fair rules.

I would like to commend the members of the Standing Committee on Citizenship and Immigration on their diligent work and their many hours of hearings on Bill C-31. They heard from dozens of witnesses and diligently considered amendments to the bill.

The members who were in the House in the previous Parliament will remember that we passed Bill C-11, which set out a balanced refugee system. They will also remember that, at that time, the government and the opposition agreed to make certain amendments to the bill to ensure that it was balanced or, in other words, to make sure that the system was quick, effective and fair. At that time, we were happy with the results of that legislative effort.

However, since June 2010, there has been a huge increase in bogus refugee claims in Canada, particularly by EU nationals.

Indeed, last year, we received close to 6,000 refugee claims from EU nationals, which is more than the number of claims we receive from Africa or Asia. Almost none of these European refugee claimants attend their hearings before the Immigration and Refugee Board, and according to our fair and legal system, almost none of them are legitimate refugees.

That is one of the reasons why we need to strengthen the integrity of our system to really discourage bogus refugee claimants from coming to Canada and abusing our country's generosity. Processing these fake claims costs Canadian taxpayers approximately $50,000. These are the objectives of Bill C-31.

Further to the statements made by members of Parliament, including opposition members, and by some witnesses who appeared before the parliamentary committee, the government considered any reasonable amendments to create a better bill that meets its objectives of combatting human smuggling more effectively, preventing bogus refugee claims and strengthening the security of our system.

Let me review briefly some of the amendments that were adopted at committee.

First, one such amendment relates to clause 19. Clause 19 provides for the automatic loss of permanent resident status if an individual loses protected person status as a result of cessation.

Cessation means that the Immigration and Refugee Board, I emphasize the IRB, not the minister, can take away someone's refugee status if it is proven that the person no longer needs protection. It has always been in IRPA, the Immigration and Refugee Protection Act, since it became law in 2002.

Since we introduced Bill C-31, we have heard concerns that an improvement of the conditions in someone's country of origin could result in the automatic loss of an individual's permanent resident status by a decision of the IRB, regardless of how long they have been a permanent resident in Canada.

Some have worried that Canada was moving toward a conditional permanent residence situation for refugees, which I should point out is not unusual in other democratic countries. The United Kingdom and Germany, for example, do not grant immediate permanent residency for protected people. However, this was never the intention of the bill.

To clarify our intentions, we moved an amendment at committee that one automatic cessation ground be removed from clause 19. The cessation ground we are removing reads as follows:

the reasons for which the person sought refugee status have ceased to exist.

The effect of this amendment is that cessation for these reasons, such as a change in country conditions, would not result in automatic loss of permanent residency. This would ensure that permanent resident status is lost automatically only when the cessation decision of the IRB is the result of the individual's own actions.

For example, if people come to Canada, make an asylum claim that is accepted by the IRB, but shortly after receiving such status, they return to live in the country of origin, which they allegedly fled due to fear of persecution, we would reserve the right under IRPA to go before the IRB to say that it appears they never needed our protection because they have immediately re-availed themselves of their country of origin. Therefore we could commence proceedings of the IRB to seek an order to cease their protected person status and revoke their permanent residency, but that would only be if they have done something to demonstrate essentially that they defrauded our asylum system.

The government also moved an amendment that relates to pre-removal risk assessments, also known as PRRAs. When failed refugee claimants are given removal orders from Canada, they can under certain conditions apply for a PRRA, which would trigger a review to make certain that the failed claimants are not being removed into situations where they might face a risk of persecution, torture, cruel and unusual punishment or loss of life.

In its original form, Bill C-31 called for a one-year ban for failed refugee claimants, including those from countries that generally do not produce refugees, which I might add, is a phrase used by the UN High Commissioner for Refugees.

This measure was intended to simplify the refugee system, eliminate duplication and expedite the removal of failed refugee claimants. The government proposed an amendment that extended this ban to three years for failed refugee claimants from countries that generally do not produce refugees.

The extension of the bar for these claimants is aimed at addressing existing process vulnerabilities that lead to misuse by those who are not in need of protection. It would facilitate the removals of those individuals not in need of Canada's protection, without the requirement to conduct a redundant second risk assessment.

Since the extension of the bar on PRRA would apply only to failed claimants from countries known to not normally produce refugees and generally considered safe, which countries, by the way, based on our proposed guidelines, would see at least three-quarters of asylum claims being rejected, abandoned or withdrawn, there is already a minimal likelihood of returning someone to a situation of risk.

It should also be noted that each eligible claimant would have received a hearing on the merits of his or her case before an independent decision-maker at the quasi-judicial IRB, which decision-maker would have rejected the claim and found no risk in returning the claimant.

In addition, the legislation would provide the minister with the ability to exempt someone from the bar on PRRA, either the one-year bar for most failed claimants or the three-year bar on PRRA for failed claimants from designated countries. That is to say, for example, that if there were to be a major event, say, a coup d'état or civil war in a country, the minister could exempt failed claimants from that country from the PRRA bar, allowing them to in fact apply for and receive a second risk assessment. It is also important to note that this amendment does not preclude a failed refugee claimant from continuing to seek leave to the Federal Court for judicial review of a negative decision of the refugee protection division of the IRB.

Some of the measures in Bill C-31 that received the most feedback from parliamentarians and members of the public were those that concerned the mandatory detention of foreign nationals who arrive in Canada as part of a designated irregular arrival, which effectively would be a large-scale human smuggling voyage. These measures, of course, were part of the section of the bill designed to deal with human smuggling.

This amendment would allow for a detention review by the immigration division of the IRB on the detention of a smuggled migrant in a designated arrival initially at 14 days prior to the detention and then subsequently at 6 months, rather than the 12 months that had originally been proposed in the bill.

I would like to once again thank all the members for their important work in committee. I am eager for all the amendments to be accepted here in the House.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, for two weeks in a row, we heard testimony from experts, front-line workers and refugees who came to express their concerns about Bill C-31 while it was being studied by the Standing Committee on Citizenship and Immigration. I want to remind the House that a policy without justice is an inadequate policy. Bill C-31 completely jeopardizes refugee rights, and creates two classes of refugees.

The NDP does not support Bill C-31. The Conservatives should withdraw it so that the new Balanced Refugee Reform Act can work. Never before have the rights of refugees been as threatened as they are under the Conservatives. Never has our democracy been as discredited as it has been under the Conservative government, which is incapable of respecting the compromises consensually agreed upon with the other parties.

The government is unable to remember that the ratification of international refugee or human rights conventions requires us to make our legislation and policies consistent with the provisions of the international conventions we have signed. The experts who spoke to us reminded us that Canada is a signatory to the 1951 Geneva Convention on Refugees. They feel that Bill C-31 protecting Canada's immigration system act respects neither the letter nor the spirit of the convention.

Let us first recall that Bill C-31 is an omnibus bill to amend the Immigration and Refugee Protection Act, unfortunately by incorporating into Bill C-4 the most unreasonable provisions of former Bill C-11, which received royal assent in June 2010. This bill raises serious concerns in addition to those already raised by Bill C-4, the unconstitutional nature of which we have raised and highlighted in our previous interventions. All the witnesses we heard during the committee's study of the bill agreed unanimously.

I would like to draw the attention of the House to some of the concerns with this bill, both in terms of the Canadian charter and the 1951 Geneva Convention on Refugees. In response to Bill C-31, the Canadian Association of Refugee Lawyers has said that, like the sorry Bill C-10, Bill C-31 is extremely complicated.

The most draconian measures in Bill C-4 have again been made part of Bill C-31. Take automatic and mandatory detention, for example. Bill C-4 proposed mandatory detention for one year for people fleeing persecution in their country of origin and entering Canada without identity documents in their possession.

Clearly, the safety of Canadians is a priority for the NDP. That is why the current immigration legislation provides for detaining foreign nationals when their identity is not known, when they might run away, and especially when public safety is at risk. So we can see how the provisions on detention found in Bill C-4, which are being reintroduced in Bill C-31 are a direct violation of our Constitution.

Furthermore, the jurisprudence constante of the Supreme Court is categorical in this regard. The Barreau du Québec, the Canadian Bar Association, the Young Bar Association of Montreal and other legal experts who gave testimony were categorical about the unconstitutional nature of detention under Bill C-31, and specifically the detention of children.

The 1989 Convention on the Rights of the Child prohibits the detention of children and defines a child as a human being under 18 years of age. We are asking that the age of the child be consistent with the Convention on the Rights of the Child.

Finally, the experts whom we have heard from in committee have hammered away at the point that the detention of children is prohibited because it is detrimental to them psychologically, mentally and physiologically, and to society as a whole. For example, Australia had introduced mandatory detention for asylum seekers, but it had to backtrack, because, not only did detention cause costs to skyrocket, but it also destroyed the fabric of society and communities.

Why are the Conservatives attempting to put themselves above the rule of law, which is a key principle of our democracy, even though they know what our highest court said about detention in the Charkaoui case? Why are they asking the House to pass a bill that we know will be subject to court challenges, as a number of experts reminded us?

Why are they attempting to mislead the House by proposing that it pass laws that they know violate not only our Constitution, but also the Canadian charter and human rights conventions that our country has signed? Pacta sunt servanda is a principle of international law. Signed conventions have to be respected.

There are also deadlines that violate a principle of natural justice. Lawyers specializing in refugee rights have said that they are deeply troubled by the short time frames that Bill C-31 gives refugee claimants to seek Canada's protection. They find that Bill C-31 drastically changes Canada's refugee protection system and makes it unfair.

Bill C-31 imposes unrealistic time frames and unattainable deadlines on refugee claimants and uses the claimants' inability to meet those deadlines to exclude them from protection.

In fact, under the terms of Bill C-31, refugee claimants have only 15 days to overcome the trauma of persecution, find a lawyer to help them, gather the documentary evidence to support their allegations, and obtain proof of identity from their country.

If their application is dismissed, refugee claimants would have 15 days within which to file an appeal under Bill C-31. As anyone can see, the deadlines imposed on refugee claimants do not allow them to make a full response and defence.

Under our justice system, the greater the risk to life, the longer the time frame accorded to the person being tried to prepare his defence. Bill C-31 does not respect this principle of fundamental justice. A number of witnesses pointed this out to us.

I am also deeply concerned not only about the new term—designated country of origin—that Bill C-31 introduces into our legislation but also about the undemocratic nature of the process for designating the countries in question. Under Bill C-31, the minister alone has the power to designate safe countries of origin, without first defining the designation criteria for these countries that refugees may come from.

According to the Canadian Association of Refugee Lawyers, the designated safe country list and the unilateral power granted to the minister dangerously politicize Canada's refugee system.

Refugee claimants who are on a designated safe country list have even less time to submit their written arguments and will not be allowed an appeal.

Bill C-31 also relieves the minister of the obligation of justifying why a country is safe or considering the differential risks that certain minorities face in a country that is safe for other people.

If Bill C-31 is passed, refugees will become more vulnerable because their fate will depend on the political whims of the minister and the government. Failed claimants from designated countries of origin can be deported from Canada almost immediately, even if they have requested a judicial review of the decision. In other words, a person can be deported before his case is heard.

The Geneva convention stipulates that the personal fears of victims of persecution are to be taken into consideration. Nowhere does it say that international protection is given to victims of persecution because of the country in which the persecution occurred, or whether or not the victim used clandestine means to reach a state that is a party to the convention.

It is not only in undemocratic countries that religious minorities are persecuted. Discrimination based on sexual orientation is not restricted to undemocratic countries. Persecution based on race can occur in any country in the world. All member states of the European Convention on Human Rights are democratic countries. But the jurisprudence of the European Court of Human Rights is replete with decisions condemning democratic states for their abuse of individuals.

The government has frequently invoked the UNHCR's favourable opinion of the safe countries of origin list.

I would like to conclude by mentioning my final concern about the changes being made by Bill C-31 with respect to applications on humanitarian grounds. These applications are a tool that allow individuals to remain in Canada, even if they are not eligible for other reasons. Unfortunately, under Bill C-31, applicants awaiting a decision from the Refugee Appeal Division cannot simultaneously submit an application on humanitarian grounds.

I would like to point out that our country has always been in the forefront where basic human rights are concerned.

The refugee problem is a human rights problem and, since the Universal Declaration of Human Rights, all people are acknowledged to have these rights, whatever their race, religion, political beliefs or lifestyle.

Asylum seekers are above all human beings. They are to be treated with respect, humanity and dignity. More than anything else, they fall into the category of vulnerable people who need our compassion and our protection. What is involved here is universal human justice.

This bill and these universal values are poles apart. That is why Bill C-31 should be rejected.

Motions in Amendment

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Speaker, I am certainly not going to give the member that kind of guarantee. What I will do, though, is identify the fact that he talked about a two-tiered system.

We, on this side of the House, do not believe that UN-sanctioned refugees who have been living in squalor and who have been waiting for years, in some cases over a decade, to find out where they will start their new lives and who have already been declared refugees, should, in any way, shape or form, be superseded by irregular arrivals who are claiming refugee status in Canada.

What Bill C-31 would do, and what Bill C-11 did, is it would eliminate the potential of a two-tired system.

We need to ensure that all those individuals who have already received refugee status get their opportunity for a new life in Canada. Those are the individuals who deserve to get here quickly. Those are the individuals we have committed to.

[Rick Dykstra, Conservative, St. Catharines, ON]

I appreciate the question, Mr. Speaker, because it gives me the opportunity to identify that 80% to 85% of what was in Bill C-11 has been carried forward to Bill C-31.

One of the reasons we introduced this legislation is that the process, even under Bill C-11, would take an extremely long period of time to work through. The minister, the government and the department identified that an opportunity to move forward and expedite the process through which a refugee claimant could make a claim to become a refugee here in Canada would actually speed up that process. , Bill C-31 would give an individual or a family who is applying to become a refugee here in Canada a much quicker process.

Therefore, even if those individuals are in detention during that period of time, they would now have two opportunities for a review of their file. We believe that before that second review takes place in six months, we will have made the identification and will have determined whether the individual is a claimant who has been denied or a claimant who is a true refugee here in the country.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes, absolutely. I recommend not putting any sort of time limit in terms of what might happen in third reading. We should try to allow for full and open debate.

I say that, Mr. Chair, because when we look at the title of the bill, it is very clear. The idea behind it was to try to improve the system. Based on that, I would argue that ultimately this bill attempts to deal with a crisis that really does not exist.

I say that because this bill can be broken into three parts, if I can generalize it very briefly.

One of them deals with the whole concept of speeding things up for the refugees. I believe that everyone inside this room and all of the witnesses who came before the committee recognize that the current system needs to be sped up. It's better for the refugees and the taxpayers. It's better for everyone. We recognized that a couple of years back. That's why we had Bill C-11, the Balanced Refugee Reform Act. That bill did receive good, solid support, and it dealt with the issue of speeding up the process.

The second thing was for the minister to deal with human smuggling. This bill takes into account Bill C-11 and Bill C-4. You'll recall, Mr. Chair, that Bill C-4 is still on the order paper. It's all about the Sun Sea, the Ocean Lady, and human smuggling. I often make reference to the picture of the Minister of Immigration and the Prime Minister standing on the back of I think the Ocean Lady, but it might have been the Sun Sea, trying to highlight this “crisis”. The reality is that the system wasn't broken; the system was actually working.

When my colleague from the New Democratic Party made reference to both the Sun Sea and the Ocean Lady, there were well over 550 refugees. The current system identified security risks, and those individuals—I believe there were six of them—are still in detention today because the Government of Canada has concerns in regard to that. There should be no doubt among committee members that there is nothing wrong with the system we have here today.

The third and broader issue is biometrics. As I pointed out in an earlier comment, this isn't something new. It's been happening throughout the world. In fact, it was first introduced somewhere around seven or eight years ago as a pilot project. I think the committee recognized that fact, and that's the reason we were investigating the issue of biometrics and how it might be able to benefit Canadian society going forward.

It would have been a whole lot better to have completed that study, reviewed the pilot project that was initiated years ago, and then developed a separate piece of legislation in order to deal with that. Then we could have had witnesses or whoever else participate to have better definition or clarification of the regulations to address some of the questions that were being posed.

In principle, we have been consistent in saying that we do not support Bill C-31 because it does establish two tiers of refugees. There is the whole concept of mandatory detention. Even though I acknowledge that after listening to the committee and the public, the government and the minister did recognize that they had made a mistake—and that's a good thing—we are very concerned about this family separation issue. That's why I asked for a recorded vote on clause 81. I wanted to make sure that it was perfectly clear and that people in this committee realized that we were preventing families from being able to reunite, or at least this minister was.

From an opposition point of view, I can tell you that the Liberal Party will be watching very closely what this minister does and how he decides to use his new power potentially against those victims—I underline the word “victims”—of the Sun Sea and the Ocean Lady. They have come from a country in which they were victims. Is this minister going to revictimize them? We'll have to wait and see, but rest assured, this is an issue the Liberal Party will be following very closely.

We are concerned with the timelines. There's so much within the legislation, and that's why, at the end of the day, I believe we would have been far better off, at the very least, to bring back this bill six months from now. How could we make this a bill that would deserve the title we're giving it? Right now, I don't believe it deserves the assigned title.

If we were to allow more time and genuinely fix the bill, there might be some merit for this particular clause, but as it stands right now, we do not support clause 1. I look forward to the bill entering third reading and debate in the House, where I'll be able to add a few more comments from my perspective and the perspective of the Liberal Party of Canada.

Thank you, Mr. Chair.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

If the minister designates the safe countries, his discretionary power will obviously increase. At any rate, Bill C-11 talked about having a panel of experts. But we have completely moved away from that idea. As the HCR said, the practice of designating safe countries of origin is only a tool used for a procedure. Since it is a tool, we need to have basic qualitative criteria to be able to make decisions on designating safe countries.

As Ms. Sims pointed out and as some witnesses reported to this committee, we also have to consider that some so-called democratic countries do not protect certain segments of their populations, such as transgendered people, lesbians and gays. We also heard Gina's testimony. She belongs to the Roma community and she spoke at great length about how persecuted those people are.

So we are asking the government to support our amendment. Thank you.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chairperson, I'm not going to take a pass on being able to provide comment on this particular amendment because, quite frankly, it allows me also to reflect on what was a fairly unanimous consensus, or whatever you want to call it, from the old Bill C-11. I think this amendment picks up a good portion of that, but not the essence of it.

The essence of it was in regard to the safe country list and how that safe country list is going to be developed. There are differing opinions on it.

In this amendment we see that we want to put something more in legislation, because it's more of a cautionary note. To what degree do we really want this particular minister or any future minister to have the power to designate a country as a safe country?

We, as a political party, have made it very clear that we don't believe the minister should be deciding what is a safe country and what is not a safe country.

This amendment, as proposed, could have been even better—but then it would likely have been ruled out of order, I suspect—by incorporating the idea of returning to having an advisory council, something that did receive unanimous support from a previous House.

I just want to emphasize that point and look to the government to recognize the past achievement of this committee. I wasn't a part of it back then. Mr. Dykstra was a part of that committee. We are taking a significant backwards step by not acknowledging what was agreed to in the past.

Thank you, Mr. Chair.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you, Mr. Chair.

Our intention, once again, is to try to reinstate something that existed in Bill C-11, which is an advisory panel that would be looking at designating countries or safe countries. That was our only intent, and I'm hoping you will now let this amendment stand.

[Jinny Sims, NDP, Newton—North Delta, BC]

I want to thank my colleague for the history lesson. It's always good.

The reason for moving this amendment is that the landscape has changed. In Bill C-11, it was a panel of experts, an advisory committee that would look at criteria and would be doing the designation. Our concern is that now it's going to be the minister doing the designations. A lot of that may be there in the regulations when they come down the road later, but right now we do not have them and they're not part of this legislation. Because of that, we want to clarify in the legislation and send the message out that this is not the unintended consequence that could result.

Just as we saw the unintended consequence that was realized when we looked at the deletion of (e) in an earlier motion...that's all we're trying to address here. It's not a clever move to sidestep or to get any further rights. It's basically looking for something explicit that would give the kind of protection that used to exist there, which was much more transparent than the future is going to be.

It's very hard, quite honestly, for me as a parliamentarian, to sit here passing a law, going through a law, where so much of the stuff is going to be in regulations and we don't know what's going to be in those regulations yet. I don't know what's going to be written in there. This is why, if the regulations were written and were brought here and we could vote on them...then I can just imagine that we might see all of this spelled out and we may not have had a need to move this amendment.

Mr. Dykstra, with that motivation, I hope you will see why it is so important for you to support this and to give us that unanimous support, so we get an amendment passed. This one, actually, absolutely is needed to give many communities out there that sense of assurance they are looking for.

Thank you.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you, Mr. Chair.

With respect to amendment NDP-16, Mr. Chair, I believe the emphasis has to be placed on the importance of the right to appeal in our immigration system. The establishment of the Refugee Appeal Division, the RAD, is a welcome step in the refugee determination system, and it takes its creation from Bill C-11.

We've heard from many witnesses that unfortunately mistakes can be made at the IRB. We heard that an unintended consequence of the expedited claims is that more mistakes may be made. Also, new information may come to light, and without access to the RAD, the Refugee Appeal Division, this information may not be allowed to be heard. The consequence of these negative decisions can be someone's life. The RAD is a precautionary safeguard, and it is for this reason that this bar is dangerous.

We have said time and time again that an asylum seeker's mode of arrival should not determine how we treat them. Mode of arrival, how somebody comes to this country, shouldn't designate them as a second-class refugee. A mode of arrival has no bearing on mistakes that can be made in the determination process.

A judicial review is unfortunately not good enough for this, as new facts may come to light. We need to ensure that there is an accessible safeguard mechanism in place to remedy any error. This bar undermines our international obligations to refugee claimants.

The Refugee Appeal Division should be accessible for all types of claimants.

Thank you, Mr. Chair.

[Jinny Sims, NDP, Newton—North Delta, BC]

Once again, we are pleased that the government has acknowledged that detention without legitimate reason is against the fundamental rights of refugee claimants.

We remain fundamentally opposed to detention, and we have expressed that a number of times, and to the designation of two-tiered refugees and of treating people who are coming to us from very, I would say, fragile situations as criminals when they arrive here. However, this amendment appears to be a corollary to the amendment in clause 25. We will be asking for immediate release unless the detention is continuing for these reasons, and I think those are stipulated: danger to public, flight risk, security threat, and the identity is not established.

That is just to let the government side know that we will be supporting this amendment, because once again we feel that the government has made a move in the right direction. The absolute right move to have been made in this case would have been to accept the fact that we needed to allow Bill C-11 to be operationalized, and at the other end, to have accepted some of our other recommendations, but as Mr. Dykstra pointed out, this committee stage is an important stage in the legislative process. It is a chance where we get to take time...and I wish we had more time to reflect on the testimony we heard and to review it, because I like to go over those things in detail, but I haven't had that time.

It behooves us, then, when the government makes a step in the direction to address some of the issues that have been raised, to acknowledge that action, and I'm doing so here. But once again, you do know that we are fundamentally opposed to detention of arrivals to our doorsteps except for identification and security reasons.

[Jinny Sims, NDP, Newton—North Delta, BC]

Yes, I would like to speak to it.

I want to acknowledge that the minister and my colleagues across the way certainly did listen and hear the concerns expressed by the myriad number of experts, as Mr. Dykstra said, whether they were advocacy groups, lawyers, or refugees themselves, who came forward and talked about the legalities of this and the concerns around detention.

Let me put it on the record: we are still against mandatory detention. We're still against the two-tier approach, but we are also here to try to mitigate this bill as far as we can, and to make it work. We did try a previous amendment in which we wanted a review done within 48 hours.

In light of the fact that the government feels that is not doable, and also the fact that our amendment was defeated, we are here with a compromise in the form of this subamendment, and we are now saying seven days. I think to have seven days for the initial review is very generous. And we're looking at people who are imprisoned; we're not talking about people who are walking around out there. I'm certainly hoping that my colleagues will be open to that.

The other is that after that initial review there should be reviews every 30 days, and once again, that's doable. We are not saying that everybody who comes to our shores by whichever means should just walk in without going through certain checks. We realize identification and security checks have to be done.

At the same time, we don't feel we should be welcoming asylum seekers—just because of their mode of arrival or because of the numbers they arrive in—by putting all of them in detention, in jail, for 14 days without their even getting a chance for review, and then six months after that...?

I think when we look at our rule of law and habeas corpus and various existing conventions, this is way over the top, and as much as I appreciate the move made by the government...I want to acknowledge that and get that on the record. At the same time, I feel it does not go far enough. One of the basic things we value is our liberty, and what we want for ourselves, we want for others. So to take away somebody's liberty for 14 days before they even get to find out what's going on and get a chance to present a case, I'm sure is not humane. It will also contravene many....

I'm not a lawyer, so I'm not going to get into the legalese.

Also, six months after that...that's a long time. With the current system...I know I've heard my colleague say we need that 12 months. I want to remind all of us, we have more than 12 months now. Mr. Dykstra, I'm sure you know we still have people from the boat situation in custody; they haven't been released yet.

Our current legislation, including Bill C-11, covers a lot of the concerns we have, and I hope the government will look at this subamendment in the way it is meant. It is meant in good faith to make something work, and we also heard your concerns around the 48 hours, so we've gone to the seven days. We certainly hope you would support this.

It would be good to get unanimous support for an opposition amendment.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much, Chair.

We are moving this amendment at this time to address some of the concerns we've had about this mandatory detention. As you can see, we have proposed two amendments. One of them was that if we should end up with a designated group, like a minimum number—and we have suggested 50—that would lead to the designation of irregular arrivals. But as we did not get that, we're introducing a periodic review of the detention regime for designated foreign nationals, consistent with that which exists for permanent residents and foreign nationals under section 57 of IRPA, to ensure that the initial review occurs within 48 hours, then within 7 days, and once every 30 days thereafter. So it would occur every 30 days. In this we are also hoping we can raise the age of detention from 16 to 18.

They say you never give up, you keep trying in different ways, and we will, because this is what we believe in.

Mr. Chair, we don't move these amendments very lightly or to be obstructionist; we're moving these amendments because we have some serious concerns around the charter and constitutional challenges, and also international conventions.

In my previous life, my experience has been that two or three lawyers can sit down in the same room and you're not always going to get the same interpretation of the language before you. In this room we heard lawyer after lawyer, and even, I would say, witnesses who were more pro-government, saying that this could create a problem.

I think it is really imperative. I am very sensitive to the fact that my colleagues across the way and the minister heard the concern and they have put forward an amendment as well, which will come later. I want to acknowledge that we realize you have heard that. However, we believe this is the right way to go. Within 48 hours we should be able to do that first review. You know what? If we're worried about large groups, we've offered the government a solution for that, and that is to designate what a large group is; we put the number at 50. Of course, there was no will for that, so our position is that nobody should be detained without a review within 48 hours, and then another review within 7 days, and another review 30 days thereafter.

When you look at it, we're not trying to create new language here; we've gone into IRPA and lifted the language out of there to reflect it here.

If the concern is that this does not work with larger groups, I want to assure my colleagues across the way that I am willing, and I'm sure everybody on this side of the table is, and I'm hoping my colleague at the end of the line is as well, to reopen that clause where we were looking for a number of, let's say, 50 that would lead to irregular designations, and then we had suggested a different timeline for those designations. Because my colleagues across the way are not prepared to accept a number for those irregular arrivals when they arrive in large numbers, it leads me to believe we have to go back to living with the processes we have, and those are the timelines we are supporting here.

I could spend the next hour and a half reading into the record the testimony of witness after witness, from every party, who said the imperative nature of the government addressing this.... But you will all be relieved to know that I'm not going to do that. What I am going to stress very strongly is for my colleagues across the way to support this.

As you know, it is not a secret that we're opposed to many aspects of this legislation. We believe it's fundamentally flawed. We don't believe in a two-tiered refugee system. We believe everybody who arrives on our shore as a refugee or as an asylum seeker, no matter how they arrive here, should be treated exactly the same. We are willing to admit and to acknowledge, and to actually celebrate, the fact that our current system, including the much-appraised Bill C-11, already has in it the ability to detain until identity and security checks have been done. There's a review built in there. So for us, this review on a regular, prompt, and timely basis.... Before we put anybody in prison, we really have to justify it and we have to be able to review it. That person who is being detained has the right to that review.

By the way, we're not saying release the person if they are a national security risk or if they have criminality that puts Canadians at risk or if we don't know their identity.

We have been very reasonable here, once again, because this opposition wants to make things work. We've heard the government's concerns and we've worked very hard to try to address those. At the same time, we also have to protect the public purse. That's our job, too, to help you protect the public purse. The way we do that is to prevent you from leaving yourselves open to horrendous litigation and all the costs that go with it.

Mr. Dykstra, I know you're going to support this, and I look forward to hearing your response.