Citizenship and Immigration Committee on Oct. 8th, 2009

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

I'd like to call to order meeting 27 of the Standing Committee on Citizenship and Immigration. According to the orders of the day, pursuant to the order of reference of April 22, 2009, we have Bill C-291, an act to amend the Immigration and Refugee Protection Act, on the coming into force of sections 110, 111, and 171.

Today we have the pleasure of having the following witnesses for our first session: Lorne Waldman, who, as everyone knows, is an immigration lawyer; Julie Taub, an immigration and refugee lawyer and a former member of the Immigration and Refugee Board of Canada; and Raoul Boulakia, who is also a lawyer.

Some of you have appeared here before, so you know how this works. You get a few minutes to do introductory comments. Thereafter, we will engage in a question and answer session.

We will begin with Mr. Waldman. Welcome.

[Lorne Waldman, Immigration Lawyer, As an Individual]

Thank you.

Mr. Boulakia and I chatted, but I didn't have an opportunity to talk to Ms. Taub before she came in. What I'm going to do is talk in general about the principles and Mr. Boulakia is going to have some specific comments.

The issue of refugee determination and having a fair system has been debated and I've been part of the debate since 1977, that I can remember. I guess I'm revealing a little bit about my age at this point.

I think it's important to go back to basic principles. The fundamental principle that any fair refugee determination system must have in Canada is that determinations must be made by independent members. I highlight this because there's some talk about having immigration officers make determinations at the border quickly. I would have very grave concerns about whether that would be acceptable under the charter, and it certainly wouldn't be acceptable as a basic principle of fairness.

The system has to be fair. There has to be some kind of independent review, and it has to be efficient. We know there have been serious criticisms about the efficiency of the current refugee determination system, which I'll address briefly, and I think Mr. Boulakia will have more comments.

The refugee appeal division was included in the legislation as a result of many years of complaints that the Federal Court was not a satisfactory review mechanism. The Federal Court is the court that sits on judicial review, and anyone who knows administrative law will understand the concept of deference, which is a legal conference that the Supreme Court of Canada has written huge amounts about. Based on that concept, a court sitting on judicial review owes deference to the tribunal below and can only intervene if the tribunal makes very obvious errors with respect to findings or has made clear errors of law.

Those of us who work in refugee determination are convinced that the Federal Court is not an adequate review mechanism, and it was for that reason we lobbied very hard for the creation of the refugee appeal division. The appeal division--and I know I've had extensive conversations with Peter Showler, who was the chair at the time when IRPA was introduced--can produce efficient and adequate review within a few months. Therefore the concern that it would add a layer and unreasonably extend the process is not, in my view, well founded.

Moreover, if we had a refugee appeal division, as was stated at the time, the fact that there is now an automatic stay of deportation while the Federal Court reviews the case could be reconsidered, because once there is a review on the merits by a second review panel at the refugee appeal division, having had two different reviews, one could argue that there is no need for there to be an automatic stay. It would still be open to the Federal Court to grant a stay if they thought it was necessary, but when the refugee appeal division was contemplated, that was part of the package that was going to go forward.

So by eliminating the automatic stay at the Federal Court and replacing it by a refugee appeal division, in essence, you're creating a process that is not going to be longer. The difficulties we've had to date with IRPA and the backlogs, in my view, are to a very large extent problems with respect to understaffing at the board.

To conclude my opening remarks, I want to emphasize that in my view the refugee appeal division, if it were implemented, would not unduly extend the process and it would create a fairer refugee determination system.

Importantly, there are other things that can be done without massive amendments to the law that would also create a fairer process. If the government today is concerned about efficiency, there are suggestions that many different people have made over time--and Mr. Boulakia is going to be talking about some of them--that could create a fairer system.

For example, just to give you one idea, we now have a PRRA, which is a very time-consuming process that uses a large amount of resources. A recent report suggested that we could do away with the PRRA and replace it with the refugee appeal division, the RAD. We introduced the PRRA because there is often a year or two between rejections and removals, and removals require reviews. But if the RAD had the power to reopen cases on fresh evidence, you could get rid of the PRRA, save a lot of money, and have a more efficient refugee determination process over the long term.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you, Mr. Waldman.

Ms. Taub.

[Julie Taub, Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual]

I thought Mr. Boulakia was next. I thought they were together.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Fine.

[Raoul Boulakia, Lawyer, As an Individual]

The efficiency of a refugee board is something that's in everyone's interest. People often mischaracterize the refugee system as a struggle between refugee advocates and people who want to be tough on refugees, or left versus right. Actually, there's no left and right on refugee issues. I represent people who are capitalist, communist, whatever, and you'll find people from every side of the political spectrum who will sympathize with at least one of my clients sooner or later.

We all hate inefficiency. When I have a client whose relatives are stuck in a refugee camp somewhere, and he has wounds because he was tortured, he wants his hearing fast. He hates inefficiency. Everyone hates inefficiency. So we just want to help you to make the system work better and have integrity

The independence of a tribunal is extremely important for many reasons. For one thing, they're like judges, and judges have to have independence and security of tenure. You could improve security of tenure for board members just by increasing their appointment times, even without changing IRPA. This would keep them from having to go through these renewal processes. Minister Kenny said that every time we change the appointment process, it takes us a long time to staff the board; it's not necessarily always our fault.

Make longer-term appointments, get them in there, and keep them in there. That way, every time you have a new election and a new government, you don't have all this chaos. The board needs to have stability as an institution.

As to efficiency in the process, the 1994 Davis and Waldman report called “The Quality of Mercy”, which was commissioned by the government of the day, recommended that the refugee officers, now called refugee protection officers, should be able to make a positive decision.

If you have 50,000 files, they can go through them and take out the ones that are obvious. They're no-brainers. They can take those out of the system. Then you take the board members and you focus them on the cases that require more investigation. You pull out the easy cases in which government thinks that the people are refugees. You clear them out of the system and focus the board members, who are paid twice as much as the refugee officers, on the cases that seem to require a hearing. Then you clear up the backlog. When Mr. Fleury was the chair, he had refugee officers who completely cleared up the backlog. But they were all short-term employees, not permanent civil servants, and a lot of them got laid off as soon as they cleared the backlog. So what happened? We had e-mails from the refugee officers in Montreal to officers in Toronto telling them that if they have a backlog they had better not clear it up, because they'll get fired.

It's like going into a mine and as soon as you dig out all the gold, you get killed. It's stupid. We need to have permanent civil servants with security of tenure--and you don't need to change the act to do that--in the position of refugee officers, so they can clear a lot of the stuff out of there. Then if you're worried about people from a particular country, you get them heard fast, because you've cleared out the system.

You don't need to change the act to do that. You have a thing under IRPA allowing a chairperson to issue a directive—chairperson's guidelines. Make a directive that refugee officers have the power to go through any file and make a recommendation. Then, automatically, a decision will go out under the chairperson's name, accepting that refugee. You don't have to change the act.

You would be creating a sort of automated system. If a refugee officer says particular people are clear, then you clear them, and you move them through to a hearing much faster.

As to the importance of having a RAD, a full appeal, it has to be a full appeal. It can't be just a technical appeal, because both sides need to take a shot at the case on appeal. If the government finds out this guy pulled a fast one on you, and they think he's a liar, or if we find out that he had an awful lawyer, that he was self-represented, or that he was mentally incompetent, we need to present the evidence on appeal. It needs to be a full appeal.

If you have a full appeal, then you avoid a lot of political problems. Every day we have stories. Our stories don't get into the media all the time. We have to have a real wild one to get into the media. But we're always taking cases to the Federal Court where what we're really litigating is a stupid decision. We're not litigating over some genius point of philosophy or refugee law or something. It's simply some board member getting something totally wrong and his decision is full of mistakes. If we had a RAD the board could clean up its own mistakes. So what gets presented to the Federal Court becomes what's representative of the institution, not embarrassments to the institution. Then you would have way less litigation in Federal Court.

You'd also have a system where you have way less likelihood of people going to the media with crazy stories. Every time you see a case where a board accepted someone that 99% of the board members would not have accepted, it's because there's no appeal. Every time we come out with a case where somebody got rejected, like some refugee from Burma--and I know Minister Kenney is very sympathetic to people from Burma--if we get a refugee from Burma who's rejected and we have to go to the media, it's because there's no appeal. If you had an appeal, your offices would get fewer phone calls and you'd be in the news less often.

Sorry, I misspoke. I mean the board, not you. This is the problem when you speak off the cuff. This is why I'll never be a politician.

We don't want the refugee board to be the subject of eternal debate. We want the refugee board to be a sound institution that is able to represent itself. What comes out of the board has to be representative of the board's true thinking, what the majority of board members think. The RAD allows the board to deal with its own issues.

It's very important that the board be independent also in terms of our government and its ability to maintain a system with integrity and a system that is not subject to any kind of political pressure. We have trade relations with most countries in the world, including countries that have questionable human rights records. We can't have a system where any government can come to us and ask us why we're accepting these refugees--don't we like doing business with them? It's going to be one country today and another country tomorrow.

There's no government that doesn't believe it's special. So when you have people who are directly accountable to a minister, or people who are not independent and people who have short-term tenure, then you have a system that is not truly judicious and doesn't truly have the force of independence. You have a problem because today it's one country that you think is reasonable and the next day it's going to be a country where you think they really have an awful human rights record. But what do you say? What do you say to them? What does your minister for foreign affairs say to them?

I would simply say that if you bring in RAD and you bring in a chairperson's guidelines, you could make the whole system way faster and you wouldn't have to totally reopen the whole act.

Thank you.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you very much.

Don't rule out public life; it's not that bad.

[Raoul Boulakia]

Public life might rule me out.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Ms. Taub.

[Julie Taub]

I come from the opposite point of view. I think the whole refugee system, as it stands today, as it was created in 2002, is completely dysfunctional and out of control. It has been an opening for abuse and a point of entry for many of the terrorist groups that have been well established in Canada.

I think the whole system has to be completely reformed. Just adding a refugee appeal division to a dysfunctional system will make a bad system worse.

Some of you are shaking your heads. By the way, half my practice is devoted to refugee claimants, and I do find that the Federal Court is more than adequate to deal with appeals. I've done well at the Federal Court, as you can see. My Federal Court decisions are in the biography that I provided.

My solution would be, number one, appoint more Federal Court judges who specialize in immigration matters. I have more faith in a Federal Court judge who has been vetted for his experience and expertise than in a patronage appointment to another appeal level.

There are already sufficient appeals for failed refugee claimants, as you can find on page 4 of my presentation. If a refugee claimant fails, he may go to the Federal Court. If he decides not to go to Federal Court, he will have a pre-removal risk assessment. If that is denied, he can go to Federal Court again.

At any time during this whole process, a refugee claimant can apply for permanent resident status from within Canada on humanitarian and compassionate grounds, and if that is denied, he can go back to Federal Court.

This can go on for years, as you've noticed from many notable cases of people who came as refugee claimants and did not depart from Canada. For example, there's the case of Mugusera. In 2005, the Supreme Court of Canada deemed Leon Mugusera, the exiled ethnic Hutu hard-liner, a war criminal and ordered him deported for helping incite the genocide that ravaged Rwanda. He was a failed refugee claimant from 1995, and guess where he still is? In Canada.

I have a list. I'm not going to read the names to you; you can see them for yourselves. These are failed refugee claimants who are either war criminals, terrorists, or criminals, who are still here years after they made their original refugee claim.

I would suggest that one of the major reforms that could be made is having a list of safe countries of origin whose citizens simply would not be allowed to have refugee claims—for example, the European Union. There are 27 countries. The European Union is much like the United States. Every citizen in each of those 27 countries has the right to work and live in one of the other 26 countries.

Let's take, for example, the Czech Roma. If they are having difficulties in the Czech Republic, they have a choice of 26 other countries in which to live or work. There is no need for Canada to accept any refugee claims—I don't mean “accept” as a positive decision, but to even process them—from the European Union. Or how about Switzerland? Or the United States? There should be a list of safe countries of origin.

Would you like to continue doing that, sir? It's rather impolite.

I would also suggest that a refugee protection officer be at every hearing to vet all the cases beforehand. I believe that is important. And if there is a problem with fairness or lack of consistency at the refugee board, perhaps the government should have civil servants rather than patronage appointments. Patronage appointments don't always ensure that you have the best person on the refugee board.

That's all I have to say for now. Thank you.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you so much, Ms. Taub.

Thank you to everyone.

We're now going to proceed to a question and answer session. It's usually a seven-minute round. I'll have to be flexible.

We'll start with Mr. Karygiannis.

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

Thank you.

Thank you all for coming.

Ms. Taub, you kept mentioning patronage appointments, and I did notice that you are a former member.

[Julie Taub]

That's right, and when I was appointed to the board--

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

Allow me to finish the question, please.

[Julie Taub]

Okay.

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

That's the way that things are done in court, right? Somebody poses a question, and until they're finished.... You're a lawyer.

When were you appointed?

[Julie Taub]

I was appointed in 1997.

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

I don't think the board is a patronage appointment any more.

[Julie Taub]

Yes, it is.

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

I see the parliamentary secretary saying it's not. I would take his word. I would take his word. So the board is no longer a patronage appointment.

You alluded that refugees who come into the country are terrorists. Those are your words. I could have been wrong.

[Julie Taub]

No, I did not say that. I said that was one of the points of entry for terrorist groups. I certainly did not say that all refugees are terrorists.

Perhaps if you had listened instead of making these impolite gestures--

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

Ma'am, I was listening very carefully, and as an individual who came to this country, who sought refugee status when I came into this country, your comments certainly offended me.

[Julie Taub]

I'm sorry. I came into this country in 1949, a child of Holocaust survivors, and I certainly don't feel offended--

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

So you also sought refuge in this country.

[Julie Taub]

No, we didn't seek refuge. There was no such thing in 1949. We came in as independent immigrants.