Evidence of meeting #27 for Citizenship and Immigration in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rad.
A recording is available from Parliament.
9:25 a.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Under the protection of Canada. You were selected--
9:25 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
No protection. We came in as independent immigrants, based on merit.
9:25 a.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
As Mugusera did. Mugusera was selected to come to this country. I certainly did not appreciate your comments that pretty well brushed every person who comes in as a refugee as being tied to the terrorists.
9:25 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
But I did not say that.
9:25 a.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
And a lot of people who are actually coming into Canada seeking refuge because they're fleeing a circumstance back home certainly do not appreciate the comments.
9:25 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
I certainly did not say that.
9:25 a.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Having said that, I have a question for Mr. Waldman.
9:25 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
I'm not finished. I did not say that all refugees are tied to terrorism.
9:25 a.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
I didn't ask you a question. Madam, I made a statement, and I thank you. I don't want to be hostile here.
9:25 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
And your statement was false.
9:25 a.m.
Liberal
The Vice-Chair Liberal Maurizio Bevilacqua
Excuse me. I'm going to call this meeting to order, please.
I think your point was made. I think the point has been exhausted.
I think your point has been made. People understand what you've said.
Now we're going to move to Mr. Waldman and Mr. Karygiannis.
9:25 a.m.
Conservative
Terence Young Conservative Oakville, ON
On a point of order, Mr. Chair, people have given up their own time to come here today, and did not come here to be berated or lectured to by the members opposite.
If the member could just ask questions in an orderly manner, I'm sure we could get through this meeting.
9:25 a.m.
Liberal
The Vice-Chair Liberal Maurizio Bevilacqua
Mr. Young, that's not a point of order. I'm chairing this meeting and I'll proceed accordingly.
Mr. Karygiannis.
9:25 a.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Mr. Waldman, would you tell us why a second tier would help? We did hear that going to the Federal Court is adequate and that people can apply for H and C, humanitarian and compassionate, while they're waiting. H and C can take up to four years, and then they can go to Federal Court.
Which is more feasible, going to Federal Court with a lawyer or going to the RAD on a second level, and which will cost less to the applicant or to the refugee claimant in terms of legal fees, for example?
9:25 a.m.
Immigration Lawyer, As an Individual
The concern is that the RAD is creating another level, but I think the RAD could be implemented in a way that wouldn't take a lot of time and it could be efficient.
The difference between the RAD and the Federal Court is that the Federal Court judges are sitting in what's called judicial review. The judge on judicial review doesn't have the power to make new findings of fact. He doesn't have the power to accept or reject the case. All the judge can do on judicial review is say that the refugee board made an error or it didn't. If you come from the point of view of the refugee claimant, the best outcome you can get is that the judge said the decision was wrong and it has to go back for a new determination. So you've already created a need for a second hearing through the judicial review process.
There have only been one or two cases where the court has actually said the case is so obvious that they are accepted. About 99% of cases are sent back for a second hearing, so you've created a need for a second hearing unnecessarily. They can't review findings of fact. If they think the decision is wrong, they can only overturn it if they think it's clearly wrong, because there is this thing I spoke about before called deference.
I want to comment that this is the first time anyone has ever mentioned this report I did 15 years ago. I thought it was lying on some shelf and had been totally ignored. So I'm glad someone has acknowledged this idea.
The advantage of having a RAD is twofold. First of all, the RAD can correct mistakes of fact that were made by the first division. The second thing is that if they decide there was a mistake, the RAD can finally resolve the case by making a positive decision so there doesn't have to be a rehearing. Those are two fundamental differences between what the RAD would be and what the Federal Court would be.
As I said, you could make the system a lot more efficient by creating other efficiencies. For example, you could create screening mechanisms inside the board that could ferret out the obvious cases and get them accepted quickly and you could streamline the clearly weak cases and get them through hearings quickly so the board could focus its energy on the difficult cases in the middle. There are lots of things you could do. As I said, if you had a RAD, my personal view is that you wouldn't need to have a pre-removal risk assessment. You could get rid of that process.
Let's say the reason you need a pre-removal assessment is that if you were rejected in 2005 and they didn't get around to deporting you until 2009, something could have happened in your country. There could be a change of circumstances, so you need to have someone look at the situation. If the system moves more quickly you could always make it possible for the person to go back to the RAD and say it's been a year and a half, all these things have happened, and ask for reconsideration. You give the power to reopen at the RAD. A written application would be the same as doing a PRRA, but it would be done in one place.
There are ways to make the system more efficient that would still allow for the RAD to be implemented.
9:30 a.m.
Liberal
The Vice-Chair Liberal Maurizio Bevilacqua
Thank you very much.
Let me be the second person to thank you for that report.
Mr. St-Cyr, you have seven minutes.
9:30 a.m.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
Thank you, Mr. Chair.
To begin, I would like to make two comments on your testimony, Ms. Taub. Have no fear, I am...
9:30 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
I can answer in French. Go ahead.
9:30 a.m.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
I am a very moderate person, but I would still like to go back to the concern Mr. Karygiannis noted. I do not see how the fact that a terrorist has used a judicial system is an argument. Terrorists also use the regular courts. In Quebec, Mom Boucher went to court and created an entire saga. Fundamentally, that is not a reason. That is why we have courts, to separate the wheat from the chaff. So I do not really see that as an argument.
9:30 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
Can I answer that?
9:30 a.m.
Bloc
9:30 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
I wanted to use that to point out that we already have so many levels of appeal that it can delay or avoid deportation for 10 or 20 years. All I am wondering is why add another appeal level without first...
9:30 a.m.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
I understand your argument, which is in fact the government's argument. I do not agree with that argument; it has nothing to do with terrorists. We are not going to sacrifice...
9:35 a.m.
Immigration and Refugee Lawyer, Former Member, Immigration and Refugee Board of Canada, As an Individual
It is just an example.
9:35 a.m.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
I allowed you to speak, so let me finish.
We are not going to sacrifice a principle that we consider to be fair because people might abuse it. That was a comment I wanted to make.
My question is for Mr. Waldman and Mr. Boulakia, who support creating an appeal division. Given that an appeal division would create a body of precedents, do you believe that it would help bring uniformity to decisions?
Many immigration lawyers in Quebec do not say so publicly, but they tell me that what we have is quite simply a board member lottery. When a client comes to them and asks them whether they have a chance of winning, they tell them that it depends on the board member, either way. Some judges reject practically everybody. When member Laurier Thibault made a decision about Abdelkader Belaouni, a resident of my riding, he rejected 98% of the people who appeared before him. I challenge anyone in this room to go before a judge knowing that they convict 98% of the people who appear before them. Everyone would say it's a charade. There is also the other extreme: some members accept everyone with no problem.
I would add that there are no precedents being created regarding substance. I am not talking about technical issues, that can be appealed to the Federal Court. Would creating an appeal division remedy this problem?