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.

[Richard Goldman]

Not at all, for the reasons we have touched on already: unrealistic timelines, lack of the right of appeal, mandatory detention for many claimants for one year.

We agreed, touching on something that's been brought up a number of times, that there are problems with the current system. Why are there problems? As our colleague Maître Bohbot said, in large part because the government did not staff the Immigration and Refugee Board and essentially broke the system, and now says that because the system's broken we have to do something radical.

We agree that somebody should not have to wait two years for a decision on their refugee claim. However, we don't think you should throw out the baby with the bathwater. Thirty days is too short. No appeal makes it impossible to correct errors. Bill C-11, for all the possible criticisms, was a relatively balanced piece of legislation. We think we should be working on that and improving that, rather than going to something much more radical that denies people's rights.

[Richard Goldman, Spokesperson, Table de concertation des organismes au service des personnes réfugiées et immigrantes]

Thank you, Rivka.

Although the Table de concertation adds its voice to stakeholders such as the Canadian Council for Refugees, which feels that Bill C-31 is so flawed as to require replacement with more balanced legislation, in order to be constructive we will be focusing on the Refugee Appeal Division and post-claim recourses, and providing our observations and recommendations on that.

First of all, the importance of a Refugee Appeal Division has long been recognized. When Parliament adopted the IRPA in 2001, it contained a Refugee Appeal Division, which was supposed to be accessible to all. In Bill C-11, this was adopted. Of course the IRPA RAD was never implemented. It's also important to bear in mind that a number of international human rights agencies have pointed out the pertinence of a Refugee Appeal Division. Quoting from page 2 of our brief:

UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process. It allows errors to be corrected, and can also help to ensure consistency in decision-making. Canada, Italy, and Portugal are the only industrialized countries which do not allow rejected asylum seekers the possibility to have first-instance decisions reviewed on points of fact as well as points of law. In the past, a measure of safeguard was provided by the fact that determinations could be made by a two-member panel, with the benefit of the doubt going to the applicant in case of a split decision. With the implementation of IRPA on June 28th, 2002, this important safeguard will be lost.

Likewise, the Inter-American Commission on Human Rights has stated:

Given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection.

I'm going to look now at the restrictions on the RAD under Bill C-31. There are four major restrictions, which I'll look at in turn.

First of all, let's consider asylum seekers from designated countries of origin. These claimants will have super-fast-tracked hearings to be held as soon as 30 days after their arrival. This will make it difficult or impossible for them to prepare their case adequately, get documentary proof of persecution, obtain identity documents, or even to secure legal counsel, not to mention overcoming the trauma of rape, sexual assault, or whatever else they may have been through. So the risks of human error in this situation are extremely high.

Second, there is the matter of arriving in Canada as part of an irregular arrival. This has no relation whatever to the merits of a refugee claim. In fact, from certain countries the only way to get out is with false documents. Passport offices may not be functioning or a genuine refugee may not get a passport. If two or more such persons arrive together, if any group arrives together with the assistance of a smuggler, they can be designated an “irregular arrival”. “Group” is not defined in the act, so it could be as few as two people, as far as we can tell. There's no logical basis for a presumption that a group of such claimants coming from, say, Iran, the Democratic Republic of the Congo, or Somalia are making abusive claims that do not merit a right of appeal.

Third, there are persons who have claimed asylum at the Canada-U.S. border already, under the U.S.-Canada Safe Third Country Agreement. Very few refugees can enter at the border and make an asylum claim. There are a few exceptions. The main exception that remains today is to have a family member in Canada. If somebody manages to enter at the border and claims asylum, he will also be subject to a restriction on his right of appeal. We really don't understand why this should be the case. As a matter of fact, in a briefing call that was held right after the introduction of Bill C-31, it was explained to us that the worst that could happen to these people is that they'd be returned to the States. Actually, that's an error. As of the expiry of the reciprocal agreement in October 2009, it's not possible to return them to the States. They would be sent directly to their country of alleged persecution, with no right of appeal. So this seems to be based entirely on an error.

With the fourth exception, “manifestly unfounded or no credible basis” claims, the above three exceptions kick in even before the claimant has been heard by the IRB.

This fourth exception only kicks in at the IRB itself. What can happen is a person who in principle has a right to appeal can have their hearing, and if the decision-maker says that the claim is manifestly unfounded or has no credible basis, they will lose their right to appeal. This strikes us as extremely perverse, because the decision-maker in effect can insulate himself or herself from review. In other words, if they make a small mistake and refuse a well-founded claim, it can go on appeal. If they make a big mistake and say that a well-founded claim is manifestly unfounded, it can't be reviewed.

It seems to us that all of these exceptions therefore violate basic principles of fairness and in some cases even logic.

It's also important to keep in mind that these same four categories will not have effective access to the Federal Court, because although it's possible for them to apply to the Federal Court, they will no longer benefit from a stay of removal. Therefore, they can be removed on day 31 or 61 and have no appeal, no access to the Federal Court in practical terms.

Other post-claim recourses are also being eliminated. The so-called pre-removal risk assessment, or PRA, wasn't a very good procedure, but this will be practically eliminated, because people will not have access for 12 months after refusal. The government has said it wants to remove people far faster than that, so practically speaking the PRA will be out the window.

Final recourse that is also effectively being eliminated is the humanitarian and compassionate recourse. This does not overlap with the refugee claim. It takes into account other things, such as gender-based discrimination, or other types of discrimination that do not rise to the level of persecution. It can also take into account best interests of the child, and so on. An exception is created in the law for humanitarian applications based on best interests of the child and medical considerations. However, no stay of removal is being provided for those cases. They can still be removed on day 31 or day 61. Consequently, as a result of these different exceptions to the RAD, there is the very unrealistic 15-day timeline for filing at the RAD. We can talk about that more.

This, along with the gutting of the other post-claims recourses, means that we may finally have a Refugee Appeal Division in Canada, and yet the majority of refused claimants will have absolutely no avenue to have their refusal reviewed.

Our recommendations are as follows. First of all, Bill C-31 should be withdrawn and replaced with fair and balanced legislation. On the specific topic of the Refugee Appeal Division, all claimants should have access to the RAD. The corresponding regulations should allow 45 days for filing and perfection of appeals to the RAD. The bar on filing of humanitarian and compassionate applications while a refugee claim is pending and for 12 months following a refusal should be removed. Humanitarian and compassionate applicants should benefit from an automatic stay of removal until such time as their humanitarian and compassionate applications are ruled upon.

Thank you.

[Nicolas Plourde, President of the Bar, Barreau du Québec]

Thank you, Mr. Chair.

Ladies and gentlemen members of the committee, as the elected President of the Barreau du Québec, I want to thank you for inviting us today to discuss such an important issue for Canadians—the security and effectiveness of our immigration system.

I would like to begin by emphasizing the importance the Barreau du Québec attaches to the improvement of the security and effectiveness of the Canadian immigration system. I invite you to read about the Barreau du Québec's previous involvement in the area of immigration, especially the letters regarding bills C-49 and C-11.

As you probably know, the Barreau du Québec is a professional order with a membership of 24,000 Quebec lawyers. The Barreau is proud of its worldwide involvement in the implementation of democratic governance and institutions founded on the rule of law. Its primary purpose is protecting the public. In that work, it strives to carry out its social responsibility by standing up for the democratic values of our society, including human rights.

The Barreau du Québec has reviewed Bill C-31, which reintroduces Bill C-11 and amends the Balanced Refugee Reform Act. The Barreau du Québec fears that the changes the bill makes to the classification process will result in discriminatory and differential treatment of claims, which may undermine claimants' confidence in the legality and legitimacy of the decisions made regarding their refugee protection claims.

That being said, the Barreau du Québec believes that protecting the Canadian immigration system is indeed an important issue and that the Canadian government is right to try to deter illegal immigration. That may make it necessary to circumscribe certain rights in the public interest. However, the bill contains harsh measures, including the automatic detention of designated foreign nationals for a period of up to a year. My colleague Mr. Goldberg will tell you more about the negative effects we fear regarding this measure.

The Barreau du Québec is also opposed to the restriction of the right to appeal a decision on its merits to the Refugee Appeal Division. The Barreau believes that an applicant's confidence in the state calls for the promotion and maintenance of a judicial structure of accessible and independent tribunals, as well as just and effective representation.

Before I yield the floor to my colleague, Mr. Goldberg, for a more thorough account of the Barreau du Québec's position, allow me to quickly introduce him. Mr. Goldberg has been a lawyer and a member of the Barreau du Québec since 1989. He is a member of the Barreau's committee on immigration and citizenship. He has been working in immigration and refugee law since 1990. Therefore, he regularly represents foreign nationals in all sorts of cases involving various immigration applications and refugee protection claims in Canada.

Mr. Goldberg is heavily involved in his area of expertise. He worked as a volunteer for a human rights organization in Guatemala. He is also active within the Canadian Bar Association and its liaison committee with the federal court. He is one of the founding members of the Canadian Association of Refugee Lawyers, where he has been the vice-president since 2001.

Mr. Chair, with your permission, I yield the floor to my colleague Mr. Goldberg.

[Debbie Douglas]

With all due respect, I think what we said was that we have Bill C-11, that Bill C-11 was a negotiated bill and that it addresses many of the concerns you have raised. To what—

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

Let me answer that question for you, because the man sitting next to you is the exact reason, and the purposes he has mentioned are the exact reasons we had to bring this issue forward. For Bill C-11, I was parliamentary secretary. I sat in every single one of those meetings, and went through the whole process and the negotiations.

I was proud of what happened with respect to Bill C-11, and a lot of the aspects of Bill C-11 are going to move forward because of Bill C-31. So you don't like Bill C-31 and you like Bill C-11, but a lot of what's in Bill C-31 is Bill C-11. So there have to be things in here that you actually appreciate.

My point is that you've listened to what Mr. Skarica has had to say. You've heard about the 15 convictions he has achieved. You've heard from him—it's what he does for a living—that we have not been successful and that our system is broken.

We will not solve the problem of what we have in front of us —this problem right here—with Bill C-11. Bill C-11 will not solve this problem. You know what we'll end up doing if we only do Bill C-11? We'll just simply slap down visas on Hungary and hope that gets us around the issue, as we've had to do with Mexico and the Czech Republic.

That's not the process we want to use. If we're going to enter into agreements with the EU, if we're going to make sure that our economies are like-minded and that we become free-trading partners, we must have a system that the rest of the world believes is foolproof—at least in the efforts that it makes.

The system that we have now in this country, as Mr. Skarica has said, is broken. Simply disregarding Bill C-31 and accepting the fact that a majority of what's in Bill C-11 is good but doesn't go all the way to solving our issue.... I just have to state for the record that I obviously disagree with your position. I respect that you are here. I just wish you wouldn't have stated at the very outset that all of Bill C-31 wasn't good and should be removed.

Second, we need to get tougher to be able to identify the people Mr. Skarica was referring to, and biometrics is in this bill, and you've indicated that it's not worth pursuing—

[Francisco Rico-Martinez]

What I am saying is that we have Bill C-11, which addresses very similar issues in a more holistic way, and was approved by Parliament. We don't understand why we have to review this issue when there was an agreement among political parties. It was approved and it was a decent agreement.

[Francisco Rico-Martinez]

And on the other hand, one of the main problems we have with the modification of the designated country of origin is the process with which that country will be determined. In the original Bill C-11, when it was passed, they were talking about refugee rights, the standards of rights or the standards of violations in that particular country, and a specialized team was going to analyze that particular concept of the evolution of the human rights issues in that particular country.

Now, that situation is gone, and we are only going to use the statistics prepared in Canada, such as the rate of acceptance, withdrawal, and 30 cases in particular time. Those are statistics in Canada. Why don't we go back to the idea of the specialized team that would take a look at the human rights levels or issues going on in that country, and provide a report on that? This would work better.

[Debbie Douglas, Executive Director, Ontario Council of Agencies Serving Immigrants (OCASI)]

I'll begin for OCASI.

Thank you for having us.

The Ontario Council of Agencies Serving Immigrants, better known as OCASI, is the provincial umbrella group for agencies that work with immigrant and refugee communities here in Ontario.

OCASI and our member agencies are very concerned about Bill C-31. Let me start off by saying that we're actually asking this committee to recommend that the bill be withdrawn and that we move forward with Bill C-11, which is scheduled for implementation at the end of June of this year.

Very quickly, we are concerned that the bill would create a multiple-tier system of refugee protection in Canada, which we believe could result in some claimants being denied the right to appeal. It makes refugee protection in Canada dangerously vulnerable to political whims, rather than ensuring a fair and independent decision about who is a refugee. It subjects some refugees to different and harsh treatment based on the country of origin, mode of arrival, and whether or not the person has citizenship in Canada, as it has to do with the revocation of permanent residency.

I just want to set the stage a bit in terms of how we have been addressing issues of refugees and asylum seekers before I pass it on to Francisco.

In 2010, Canada accepted about 24,000 refugees in all classes. This was about 11,000 fewer than the 35,000 who were accepted in 2005. In 2005, refugees in all classes accepted in Canada were about 13% of all permanent resident arrivals. In 2010, they were down to 8% of those arrivals, a drop of almost 5%.

In 2005, the number of refugee claimants present in the country constituted approximately 0.3% of the Canadian population. Five years later, in 2010, the percentage of refugees compared to the Canadian population was slightly lower at 0.28%. In 2010, we accepted 3,400 fewer claimants than five years earlier, in 2005. At the same time, the number of people forcibly displaced in countries around the world has been growing.

We believe, and we are deeply concerned, that Bill C-31 will reduce even further the number of individuals who seek to enter Canada in search of asylum.

The minister has said that Canada welcomes more resettled refugees per capita than any other country. Meanwhile, according to the UNHCR “Global Trends” report of 2010 that was released last year, 80% of the world’s refugees are in the global south, in the world’s poorest countries such as Pakistan and the Congo. The report found that roughly 43.7 million people are displaced worldwide. Of that number, 27.5 million people are displaced within their own country due to conflict.

In this global context, Canada’s involvement in resettling refugees, while admirable—and I don't think any of us around this table are arguing about that—doesn't quite measure up to the commitment of other countries in the world. According to the same UNHCR report, in 2010 Canada had 4.2 refugees per U.S. dollar of its per capita GDP compared to Pakistan at 709, Congo at 475, Kenya at 247, and Chad at 224. The comparison becomes more stark when one considers the fact that Canada’s GDP per capita is considerably higher than that in the countries named.

We're also deeply concerned about the growing anti-refugee sentiment in Canada and the extent to which this could be exacerbated by government messaging about the bill. I heard some of the language used earlier today while I was listening to some of the other witnesses makes their presentations and to the question and answer period. Messages that characterize asylum seekers in stereotypically hurtful ways, suggesting that they are bogus and are a drain on Canadian society, can have a harmful effect. We are also deeply troubled by the misperception that these measures are necessary because Canada is facing supposed floods of refugees. This messaging contributes to increased intolerance towards refugees and has a harmful impact on their resettlement opportunities in Canada.

While we believe that most of the measures are quite problematic, let me just concentrate on two pieces and then I promise I'll shut up.

First is shorter time limits. I know that the previous witnesses spent some time on this topic, but we are particularly concerned that the shorter time limits will pose additional difficulties for particular claimants. We are particularly concerned, as a council, with lesbians, gays, and trans folk, as well as women fleeing domestic violence, who often need to develop some sort of trust before they will disclose or “come out”, as we say here in North America, about their sexual orientation or their search around gender identity issues. We believe this will present increasing difficulties for them in having their claim together within the 15 days proposed in this bill.

For me, this is also tied to the safe countries list. I won't go on and on about the safe countries list. You've heard many arguments about the ongoing concerns. But we absolutely know that in countries that Canada has deemed to be democratic, and countries with whom we may have trade agreements, and countries with whom we work closely outside the EU—and you've all heard how safe the EU is for particular groups of people—particular groups still face severe discrimination. This discrimination at times not only leads to severe physical abuse, but also at times to death. Even here in the Americas we have examples of this.

One of the stories that I want to share just briefly, which is about four years old, is about a young Mexican woman whose claim was refused. She was sent back and was killed. Unfortunately, there is a more recent case that came up, the case of Veronica Castro, also from Mexico. Her claim was denied. A year before she was deported she was saying to friends that the decision was a life and death one for her if she were to be sent back , and she was hoping for their prayers. She wrote to one of her friends that her deportation was a matter of life or death, and said: “I'm shaking and terrified every time I think about my deportation. I am really scared”. Thirty-three days later, after being deported back to Mexico, on January 12, 2012, she was murdered.

So those are the kinds of stories that we know and that we are concerned about if we were to move forward, as a country, to adopt this bill.

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

I appreciate that.

Mr. Rehaag, your original point is of interest to me. I agree with you that it's hard to argue with statistics when you look at the decision-making process and those who make the decisions at the IRB. There are those who approve almost everyone and those who approve almost no one.

You're aware that under Bill C-11 and under this current legislation we will be moving our process from appointed individuals to 100 individuals who will be part of the public service. Therefore, that process will change significantly in terms of where it is now, where it has been in the past, and where it will go in the future, thereby taking direct aim at the statistics that you cover and obviously are able to show.

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

Is that all I have? I'm so sorry.

For my 30 seconds, I think I will confine myself to a comment, then.

When I read through this, a lot of this language is to strengthen and improve this country's immigration system, or to protect the citizenship of Canada. Of course we want to protect the citizenship of Canada, but I'm looking for the kind of evidence that you have, hard evidence, that our current Bill C-11 policies, if implemented, would actually put Canadians at risk. I don't want to talk about the bogeyman or what-ifs, because those what-ifs exist when anybody arrives in this country.

Thank you.

[Les Linklater]

The transition provisions for C-11 differed for a number of elements within the legislation. There were a couple of provisions that came into force at royal assent, including the way we assessed humanitarian and compassionate applications. There were some operational changes that came as a result of that in June 2011. The bulk of the transition measures were to come into force no later than two years after the date of royal assent, that is, by June 29, 2012. We have been working towards that implementation date. A number of packages of regulations were prepublished last summer. As we got into broader implementation issues, the minister was of the view that we needed to look at further legislative reform. At this point there are very few actual provisions from C-11 that have come into force.

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

Thank you very much, and my thanks to you both for your presentations.

I wanted to start off with a question you heard me ask the minister the other day. It wasn't too long ago—I don't think the ink has dried on C-11 yet—that the great Canadian compromise was reached, and all parties said how wonderful it was.

How long have you actually been working with the new rules created by C-11?

[Jason Kenney, Conservative, Calgary Southeast, AB]

I hope so. I regret that the critics of our approach have not even bothered to give a nod in the direction of our enhancement of refugee protection that is part of this broader package. When we launched Bill C-11 I announced a 20% increase in the number of resettled refugees that we would accept worldwide. We already accept one out of every ten. We're going to be the number one destination for resettled refugees worldwide per capita following this increase. We're increasing the refugee assistance program by 20%, and that's not coincidental. We're doing that concurrently with these reforms to the asylum system to send the message that we, as a country, can do more to help bona fide refugees, real victims of persecution, ethnic cleansing, and warfare, if we focus our resources on real refugees and not those who seek to abuse our generosity.

Second, we are for the first time creating a full fact-based appeal that will be available to the vast majority of asylum claimants who are rejected at their initial hearing. That means that for claimants from countries generally known to be or could be sources of persecution, those who don't get positive decisions initially will have a full fact-based appeal. This is what so-called refugee advocates have long demanded. This will take what is already considered a model system and add even additional protection for those who might have a negative decision at first instance.

I don't just “think” this, but objectively I believe this reinforces our longstanding humanitarian obligation to refugees.

[Jason Kenney, Conservative, Calgary Southeast, AB]

We estimate that the savings under Bill C-11, which is the basic structure of the new asylum system, to be about $1.8 billion over five years. Most of those savings are to be derived by the provinces, because they'll be paying less money in welfare payments to failed asylum claimants, who will be removed in a matter of months rather than several years.

The main savings that we generate are through the interim federal health program. Altogether, along with the scaled-down benefits that I announced yesterday, we estimate there will be about $100 million in savings on the IFH program over five years, again because we're providing those benefits to people for a few months rather than several years.

[Jason Kenney, Conservative, Calgary Southeast, AB]

First of all, I'd like to congratulate Ms. Sims on her appointment as the critic for immigration and citizenship for the official opposition. I look forward to working with her and all of her colleagues.

I am proud of the compromise that we achieved in Bill C-11 in the last Parliament. I think it was a huge improvement over the status quo. However, we have now seen, since the adoption of that legislation, a continued and growing wave of unfounded asylum claims coming from democratic countries, which represents a fundamental threat to the integrity of our system. Since that time we've seen a growing escalation in the number of unfounded asylum claims coming from Europe. When I say “unfounded”, it's the claimants themselves who indicate that by not showing up for their hearings, in large measure.

So we came to the conclusion that we needed fast and flexible tools to be able to address large waves of unfounded claims from such jurisdictions. That's why we revisited some of the provisions in Bill C-11. This bill, Bill C-31, maintains the basic architecture of Bill C-11. It does maintain the refugee appeal division, which adds an additional procedural safeguard for the vast majority of failed asylum claimants. It does maintain a faster system. The system in Bill C-31 is faster and fairer. The main difference is a streamlined appeals process for people coming from countries that do not normally produce refugees. This reflects normal practice in other liberal democratic countries with respect to their asylum systems.