Citizenship and Immigration Committee on Oct. 8th, 2009

[Alice Wong, Conservative, Richmond, BC]

How much time do I have?

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

You have a minute.

[Alice Wong, Conservative, Richmond, BC]

Thank you again.

I think there are cases right now where the reason people have been able to stay is that their appeals have taken a long time. We have had cases for 10 years and over 12 years. We have doubled the amount of time. So by the end of the 20 years, we probably have the second generation grown up in Canada already.

So is that the system we are looking at right now, Ms. Taub?

[Julie Taub]

Well, in some cases, that is the system we're looking at, absolutely.

[Alice Wong, Conservative, Richmond, BC]

Thank you.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you so much, Ms. Wong.

We don't have enough time for an entire round, but I will do something new here and have a rapid round. You'll ask a very quick question and then allow anybody else to ask a question too, and then the panellists will answer.

Alexandra Mendes, do you have a very quick question of less than a minute?

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

I have one statement and one question.

First of all, Mugesera did not come to Canada as a claimant; he came to Canada as a selected refugee from abroad, and he came in as a permanent resident, first cleared.

Second, to Mr. Waldman and Boulakia,

I think the fundamental problem is that we do not have an appeal system. That is what the introduction of this bill is trying to remedy.

Can you describe the proposed process, very simply?

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Okay, thank you.

Mr. Calandra, be very quick.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Okay.

Mr. Waldman, you're a practising immigration lawyer. Because I have you in front of me, I will ask you briefly to answer some questions about how billing works for immigration lawyers. I've heard Mr. St-Cyr on this and I've reviewed testimony from previous Liberal and Conservative ministers with respect to an appeals division, so I've heard all of these comments before and want to go in a different direction.

I want to know the costs associated with appeals to an appeals division. I want you to explain to me, briefly if you can, how you bill. Is it by the hour? Do you take a retainer? What would an appeal to an appeals division cost somebody seeking that appeal?

I'm going to suggest—and you can comment on this—that the addition of an appeals division would certainly add a very attractive new revenue source for certain lawyers practising in the immigration field. So I hope you will give me some comments on that.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you, Mr. Calandra.

Mr. St-Cyr.

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

I asked earlier whether the appeal division could bring uniformity to decisions. I would also like to know whether it would be possible to monitor board members' performance. If 90% of a judge's decisions are reversed on appeal, the chief justice is going to let them know at some point that things are not going as they should. It seems that in this case, these people can make any decision they like, since there is no accountability and no subsequent review.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you.

[Lorne Waldman]

It is very important, in response to what the member was saying, to state that all of us who work as lawyers are frustrated by the delays and inefficiencies in the system and we all want to make a positive contribution to make the system work more fairly. That's why, when Mr. Boulakia and I talked about the RAD, we're not talking about the RAD in isolation. Contrary to what was suggested, we're not saying bring in the RAD and don't do anything else. If you bring in the RAD, you have to bring it in together with other changes, the ones we pointed out, which would, in the end, create a fairer and efficient system, a system about which there wouldn't be all of these complaints to the government.

So if you asked me to describe the system.... Well, there could be a different system if you made legislative changes. But if you didn't make any legislative changes, a person could make a claim, and the refugee hearing officer could look at all of the files and choose the clearly well-founded claims, which would be accepted without a hearing, and that way you could probably get rid of 20% of the claims quickly. So you would eliminate a lot of the backlog. They could also screen out the clearly or manifestly unfounded claims and put them into a rapid stream as well, to get them out quickly to a hearing. You'd have a hearing before the refugee division. If the decision were accepted, and unless the minister decides to appeal, it's over. If the decision were negative, it would go to a hearing before the RAD, which, according to the way it was proposed before, would be a quick review, normally done in writing—although there would be the possibility of a hearing, supposed to be done within two to three months. If the RAD rejects having a hearing, there is a possibility of judicial review, but the important difference is that whereas now there is an automatic stay of deportation while the Federal Court looks at the case, if you had a RAD, you could eliminate that because there would already have been two reviews. The Federal Court could still stay the deportation, but it wouldn't be automatic.

If the system worked quickly, then there wouldn't be a need for a PRA. If there were a delay in the deportation so a certain amount of time had passed or there were new evidence, you could have the PRA done at the RAD, as we've said. So you could eliminate all the costs of having the PRA separate from the RAD.

So I would say that you could have everything done as quickly as before, or much more quickly, and still have a RAD that would eliminate the process. So I think there is a spirit here of trying to acknowledge the government's concerns to get a more efficient system, but also acknowledging the concerns expressed about the need to have a review.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Mr. Boulakia.

[Raoul Boulakia]

To the member of Parliament's question, one of the problems was that you came up with this idea in IRPA that did make sense, but to implement it in a way that would be effective and wouldn't create more problems, you needed better technical advice. That's what we're trying to give you. I often say to people that if you want good advice, get a good lawyer.

In response to the concern of lawyers wanting more fees, I'm not getting paid for being here. You can get a lot of advice that would help you to implement this, make it work, and make it work to everyone's satisfaction, including people who are concerned about abuse, with some good free advice from lawyers who are willing to be part of a system. Engage us. We want to help. We want the system to work. None of us wants the system to fail. Don't just think that if you pass legislation you only need to rely on the inside people. Bring outsiders in. We all want to work together.

If anyone thinks there are lawyers who are determined to get more legal aid work in Quebec and Ontario, I know what the rates of legal aid are. I know that there's a partial boycott being done by criminal lawyers in Ontario. Please, consultants bill a lot more than lawyers. There is no control. Really, let's get serious. Who are you talking about?

[Lorne Waldman]

On the member's question about the fees, whatever the fees would be for a RAD, it would be a lot less than a Federal Court application, which is much more complex and time-consuming. I would suggest to you that the claimants would be better served by a RAD because they would have access to a less expensive appeal process.

[Julie Taub]

Could I comment on that, please?

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Yes, and then Mr. Calandra.

[Julie Taub]

To get back to the fees, just because you go to the RAD doesn't eliminate the possibility of going to Federal Court afterwards. That's number one.

I believe we all want the same thing here. We want a more efficient system. From my point of view, a more efficient system would be overhauling the refugee system, as opposed to just adding the RAD to a dysfunctional system. In the end, we have the same goals. In the end, we want something more efficient and less open to bogus claims and we want a more rapid processing of genuine claims. We all want the same thing. We want to get to the same goal, but by different routes.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Mr. Calandra, a final question.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

It strikes me that everything you're saying seems to suggest that bringing forward the RAD without significant changes first would be absolutely inappropriate. We're almost putting the cart before the horse.

Also, with respect to legal aid fees, I think taxpayers in Ontario and Quebec might also have something to say about the costs associated with an appeals division.

You're right, Ms. Taub: it doesn't stop you from appealing to the Federal Court. I wonder if it's not your duty as a counsel to people that, if you get a decision you don't like, you would automatically appeal that decision or find avenues to appeal that decision, which would then in essence cost the taxpayers even more money.

We have cases of people who've been in this country for 15 to 20 years. We have a case of a gentleman who is a hijacker, shot his hostages, and he's been here for 20 years. I think you're familiar with that case. If I'm not mistaken, it's Parminder Singh Saini, who articled in your law firm. The Canadian court suggested that he should be out of this country, that he's a danger to this country, and 15 years later he's still here.

I think taxpayers have a right to have confidence in the institutions, as you've been suggesting, and have a right to feel that their government is working for them. It is the responsibility of all of us to make sure our country is safe and our communities are safe.

With that, I'll close, Mr. Chair. Thank you for allowing us to go over time. Hopefully we'll have another opportunity to hear from these witnesses in the future.

You don't have to comment. I just wanted to get that off my chest.

[Lorne Waldman]

All the things we stated are things that could be done without legislative change. That's the reason we suggested all these things. Obviously, if you do legislative changes you can do lots more, but you can create a fair, efficient system, implement the RAD, and not have to make any legislative changes.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

I want to first of all thank everyone for their input. As parliamentarians, we depend heavily on individuals and experts to provide what can be at times varied opinions, but that's what makes the public debate exceptional in this Parliament. For that, on behalf of the committee members, I want to express our sincerest gratitude.

Thank you.

We'll suspend for five minutes.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

I call the meeting to order. This is the second session. As we all know, the orders of the day are, pursuant to the order of reference of Wednesday, April 22, 2009, for study of Bill C-291, an act to amend the Immigration and Refugee Protection Act, coming into force of sections 110, 111, and 171.

The second panellists include, from the Canadian Council for Refugees, the executive director, Janet Dench. Welcome. As an individual we have a former ambassador and former executive director of the Canadian Immigration Service, Mr. James Bissett. Eventually we'll have Rivka Augenfeld, representative from the Table de concertation des organismes au service des personnes réfugiées et immigrantes.

We will begin with the Canadian Council for Refugees and executive director Ms. Janet Dench. Thank you very much for coming. You have approximately seven to ten minutes—closer to seven, please.

Thank you.

[Janet Dench, Executive Director, Canadian Council for Refugees]

Thank you very much.

Thank you for the invitation to speak to you this morning about Bill C-291, compelling implementation of the refugee appeal division.

The Canadian Council for Refugees urges the Committee to complete its study very quickly, given that the bill has already been studied by both the House and the Senate in the previous Parliament. It is very important that the bill be passed quickly, for three reasons.

The first is that the bill is important. Providing refugee claimants with the right to appeal may save lives. Wrong decisions at the refugee hearing that go uncorrected can lead to refugees being returned to persecution, torture and even death. Contrary to much popular opinion, there is currently no appeal on the merits for refugee claimants. The limited recourses that are available are incapable of correcting many errors in refugee determination.

The second reason is that the bill needs to be passed quickly. It is already more than six years since the Immigration and Refugee Protection Act came into effect without implementing the right of appeal for refugees foreseen by the Act. As a result, for six years refugee claimants have been having their fate determined by a single decision maker in a system never approved by Parliament. Refugees have already waited too long for this injustice to be corrected.

The third reason is that the bill was very close to becoming law. All that was left was for the House of Commons to vote on the amendments made by the Senate. It should therefore be a straightforward matter for the House and Senate to pass the same text without further debate and delays.

As you discuss this bill and the broader question of possible changes to the refugee determination system, we would encourage you to bear in mind several points.

First, refugee protection is a matter of human rights. A refugee determination system must first and foremost ensure respect for the human rights of those who claim our protection. Of course, you have a responsibility to ensure that the system is working efficiently and that it is not hampered, for example, by large numbers of claims from people who do not need Canada's protection. But your primary concern should always be to ensure that the system is ensuring that no one who needs Canada's protection is sent back to persecution or torture. We are therefore concerned when there appears to be more time and energy given to worrying about unfounded claims than about claimants who are wrongly rejected and face return to persecution or torture because there is no appeal on the merits in the Canadian system.

Second, refugee determination is about offering protection to individual human beings who need it. The success of the refugee determination system must be judged on whether it recognizes those individuals who need protection. It is not about whether the overall acceptance rate is high or low. To an individual person who needs protection and who has been rejected, it is no help to say that the acceptance rate in Canada is high. We want to underline the dramatic implications of the lack of appeal on the lives of individuals.

I invite you to read the story of Juan Manuel in this document that was circulated, on page three in the sidebar. Juan Manuel made a refugee claim that was denied in Canada. Shortly after his return to Mexico, he was brutally attacked by the people he had originally fled. He was in intensive care for 12 days. He was lucky to survive. If bystanders hadn't intervened, he would have been killed.

In another case, the UN Committee Against Torture intervened to stop Canada deporting an individual to a risk of torture.

It was in December 2004. The Committee Against Torture found that Canada had failed Enrique Falcon Rios, a victim of torture. The decision also highlighted some problems with Canada's refugee determination system, notably the lack of any effective appeal or recourse for correcting errors in decisions by the Immigration and Refugee Board.

There is a third point we would encourage you to bear in mind. There is a lot of misunderstanding about the refugee system. Unfortunately, the refugee system, which is quite complex, is often misunderstood or misrepresented. As you review problems in the system and consider changes, we strongly recommend that you make sure you get really good information about the system. For example, people frequently suggest that delays are caused in the refugee system by humanitarian and compassionate applications, commonly called “H and C”. We were discussing this earlier. However, it does not seem to be widely understood that there is no stay of removal pending an H and C application. So it is not true that a person can delay their removal by simply making an H and C application.

Another example of a misunderstanding is the common assumption that the problem lies with legislation if it takes a long time to remove refused claimants. In fact, it is more often a problem of bureaucratic processes and priorities. Despite the growing backlog at the Immigration and Refugee Board, many Mexican claimants have been having their hearings very quickly, because their claimants have been given priority by the board. Yet there may have been no effort to remove them for many months or years, those whose claims were rejected, because they are not a priority with another arm of the government.

The CCR and its member agencies have a wealth of experience with the system. We can see what is working and what is not. We urge you to recommend to the minister that he consult with the NGOs serving refugees before drafting any legislation.

There is a fourth and final point that we urge you to consider.

Discussion of refugee issues needs to be respectful and well-informed. We have heard numerous serious inaccuracies in recent public comment on the Canadian refugee system, often apparently motivated by hostility to refugee claimants. This does not support reasoned discussion about the important policy issues. Refugees are among the most vulnerable people in society and are easy targets for attack, as non-citizens in a foreign country.

We encourage you, as you discuss these issues, to always keep in mind that we are talking about human beings who deserve our respect.

Thank you very much.