Citizenship and Immigration Committee on Oct. 20th, 2009

[The Chair, Conservative, David Tilson]

We're going to call this meeting to order, ladies and gentlemen.

This is the Standing Committee on Citizenship and Immigration, meeting number 28, Tuesday, October 20, 2009. Pursuant to the order of reference of Wednesday, April 22, 2009, we are considering Bill C-291, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171).

We have before us this morning two witnesses: Mr. Francisco Rico, from the FCJ Refugee Centre; and Martin Collacott, a former Canadian ambassador in Asia and the Middle East.

Good morning to you, gentlemen.

We are going to give each of you 10 minutes to address the committee, and then we will have questions from members of the committee.

Mr. Rico, you're first on the list, so we'll let you go first.

[Francisco Rico-Martinez, Co-Director, FCJ Refugee Centre]

Thank you very much. Thank you, honourable members of the committee, for the invitation.

I'm going to submit to the committee a real case that is happening right now. The names of the claimants have been a little bit modified because they are still alive and they or their families back in Mexico could be at risk of their lives. If the committee wants to have the real names and everything, I have them here with me and can produce them for you.

Nohemi and her daughter Bebe came to Canada in August 2004. They were fleeing threats to their lives by Colombian narcotraffickers who were linked to an infamous gang called the La Familia Michoacana. The father of this girl—the husband of this woman—was killed in 2002. Due to financial constraints, the oldest daughter couldn't come with them, but she joined them later on. That happened in August 2004. In October 2005, the refugee protection division of the Immigration and Refugee Board denied the applicants their refugee claim. The reasons are very interesting because they said they don't have a subjective fear of persecution. One of the reasons they gave in the decision is that there is no credible claim because the oldest daughter, who came late, came with a return ticket to Mexico. When they were interviewed—she was interviewed at the airport—she didn't mention that she wanted to make a claim; she mentioned that she was going to visit Canada. They went to the IRB, and on the basis of that, the IRB member decided that this case is not credible. There is no appeal division, so nobody can correct the findings of the IRB member because it's not an appeal on the merits of the case.

The applicant then applied for judicial review, but of course you know that because the judicial review doesn't go on the merits of the case before the Federal Court, it's meaningless to detect these kinds of problems. The applicant then applied for pre-removal risk assessment. In contradiction to the IRB, the PRA officer believed them. They said, no, I believe this happened to you. They do that because, technically, if the PRA officer decides there is credibility, he would have to call for an interview. In order to avoid interviews, in most of the PRA decisions they accept the claim, they say there's credibility, but they use technical reasons to basically reject the claim. In this case, even though there was plenty of proof that they had gone to the police and everything, the PRA officer decided there was enough protection in Mexico, and they declined the petition as well.

So the applicants were ordered to leave Canada in December 2006. However, they didn't leave because they were so scared to go back. In March 2008 the oldest daughter had to go back. Why? Because the grandma, the mother's mother, was sick, and she went to take care of the grandma. Grandma died five days after she arrived in Mexico. Since that moment, the oldest girl, who at that time was 22, tried to start coming back to Canada. But nobody informed them that there is a procedure for Immigration Canada where they have to present themselves and inform them they are leaving in order to have a record here. She left, and when she tried to come back she was not allowed to make a claim, even for PRA or anything, because the officer at the airport basically sent her back and said they didn't have a record that she was out of the country. She was sent back.

We don't have a mechanism to check at the airport how the officers act. We don't have a mechanism. We don't have an independent ombudsman who you can call to check up on procedures.

On the other hand, there is a procedure at the embassies where they can introduce evidence that a person has left the country undetected and gone back to their country on a certain day. But if you go to any embassy, they refuse to do that kind of procedure, and they have even said that there is no procedure like that. We have had to e-mail the copy of the procedure to the staff at the embassies to try to convince them to recognize that they can do that for a person outside of Canada. The embassies have the obligation to do that according to the Immigration and Refugee Protection Act, but they have ignored that obligation.

So what happened is she was then forced to leave Canada. She tried again a few weeks later because she was at risk. When she returned to Mexico she was attacked, raped, beaten, and threatened by the same people that they mentioned in the immigration and refugee protection division case. They are still insisting that they have a risk. After that rape she became pregnant and she tried to escape again. At that time the mother managed to contact my office--the mother was still here illegally--and we tried to stop the imminent removal of that young woman, but we couldn't. We went to the Federal Court and the Federal Court declined. They said there was not enough evidence that this woman was going to face a risk back home, and she was sent back. That happened in December 2008.

In February 2009 the mother and the youngest daughter of this woman were also removed from Canada. They met and started living together. In March the young pregnant woman had a medical condition and they went to visit a doctor. She was then kidnapped by the same people that they had been arguing about right from the beginning. She was kidnapped in front of her mother and her sister and a friend who was helping them. She ended up dead in June 2009. She was pregnant. The death certificate of this woman basically showed that she had had a caesarean, and this case--

[The Chair, Conservative, David Tilson]

A point of order.

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

Mr. Rico, I apologize. I know you're stating an example and you are going into great detail on that example. But I'm wondering when you plan to speak to Mr. St-Cyr's bill in your presentation, what you like about it and what you don't like about it, and why it should be enacted.

I understand you have a personal issue that you want to get on the table, but our hope is that you're actually going to speak to the bill. That's why we did call you as a witness.

[Francisco Rico-Martinez]

Okay.

In that case, let me put the example that this case proved that the judicial review, the appeal division, is not there. That's why this case was not detected when there was a mistake in the original decision. When the person came back, I tried to make a claim to send back the proof. But we don't have any recourse where people can report problems with the authorities at the airports. When they tried to make a claim at the embassy to come back after this woman was killed...we don't have a procedure to bring Mexican people back--

[The Chair, Conservative, David Tilson]

You have one minute, Mr. Rico.

[Francisco Rico-Martinez]

The other thing is that we submitted all of the evidence to the embassy after this woman was killed, proving that this family is still at risk. The application for a temporary resident permit was approved by the embassy in Mexico. The family, the only survivors, the mother and the daughter, are here and they are alive, which proves that the officers and the management team at CIC in Ottawa, and the person in the embassy in Mexico, were clear that there was a mistake in the whole situation. That's why they are here, and we are processing a humanitarian application. Why? Because we still don't have any remedies to protect these people in another way.

So that's an example of how we need the appeal division to protect these people and many other things.

[The Chair, Conservative, David Tilson]

Thank you for that presentation, Mr. Rico. It was an example of the problem.

Mr. Collacott, thank you for coming. You have 10 minutes as well.

[Martin Collacott, Former Canadian Ambassador in Asia and the Middle East, As an Individual]

Thank you, Mr. Chairman, and thank you to the committee for inviting me here, because I think this issue is very important.

I'll present my points in two parts: the refugee advisory division proposal itself--I think the short form is RAD--and also other aspects of the refugee determination system. I think you have to look at the RAD in the whole context to get the full view.

First, I'd like to say there's widespread support in Canada for allowing a reasonable number of genuine refugees to resettle in our country. My own family includes boat people from Vietnam. My wife is from Vietnam. So I'm quite sympathetic to this position.

By the same token, many Canadians feel considerable unease about how well the system is working. An Ipsos Reid poll, for example, found that 71% of those surveyed thought we needed a major rethink, while only 29% thought the system was working well.

In 1997 the government-commissioned study “Not Just Numbers”, subtitled “Immigration Legislative Review”, noted that “…public confidence in the fairness, consistency and efficiency of our program–particularly with regard to the in-Canada determination of refugee status–is flagging badly.” That was written more than 10 years ago, but I think the same issues they identified are still there.

The main reason the RAD has not been implemented is quite clear, and it was fully reviewed in the committee’s meeting of October 8. No one objects to having some provision for a review of the merits of the case of an asylum seeker whose case has been turned down by the refugee board. At the same time, it is quite clear that to create the RAD before cleaning up the existing series of virtually endless appeals and reviews would only make a bad situation worse.

As witnesses who appeared before this committee pointed out on October 8, the various appeals and reviews currently available to failed claimants can enable them to avoid removal from Canada for years and even decades. Until this situation has been rectified, it would make no sense to add yet another opportunity to delay departure.

There is another related point that was raised on October 8 that although there's no provision at the moment for review purely on the merits of the case, in fact almost all cases, for instance, taken to the Federal Court, which deals with legal points and process, do get into and can get into the merits of the case. It's hard to separate the two.

Creating the RAD at this juncture might be seen as a positive outcome by immigration lawyers bent on keeping their clients in the country as long as possible, but I think Canadians in general would regard a decision to do so as ill-advised.

It's no accident that all six ministers of immigration who have been in office since the current Immigration and Refugee Protection Act came into place in 2002--three Liberals and three Conservatives--have refused to implement the RAD for the reasons I have just described. And I think it's notable that none of the three former Liberal ministers--Denis Coderre, Judy Sgro, and Joe Volpe--supported the bill to implement the RAD when it was put to a vote in the House on April 21 of this year. I think Joe Volpe spoke out strongly against its implementation when it was reviewed by a Senate committee.

In the circumstances, efforts by refugee lawyers and activists to have the RAD created before the existing problems are dealt with should be firmly resisted. To implement it now would make the situation worse than it is already. What we need is a total overhaul of all parts of the appeal and review system.

I'll just comment quickly on a couple of other issues of the refugee determination system.

One of the major problems with the current system is the extent to which we've expanded the interpretation of what it is to be a refugee to the point where it goes well beyond the meaning intended in the UN convention on refugees. The Canadian representative to the UNHCR, in Geneva at a meeting on October 7, 1991, summarized the situation accurately when he stated that to expand--

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

I have a point of order, Mr. Chair.

[The Chair, Conservative, David Tilson]

I have a point of order. Excuse me, Mr. Collacott. I'm sorry.

On a point of order, Mr. Karygiannis.

We'll stop the clock.

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

Thank you.

Mr. Chair, I was wondering if we could ask the witness to confine his remarks to Bill C-291 and not expand beyond that as to the determination of refugees. We're studying the appeal mechanism, and I think the committee.... I certainly would like to hear more about the appeal mechanism versus how we determine what is a refugee and what is not a refugee.

[The Chair, Conservative, David Tilson]

I think the witness is relevant--maybe a little off, but he's relevant.

Carry on, Mr. Collacott.

[Martin Collacott]

I must say there was a great deal of discussion on October 8 about these other issues.

[The Chair, Conservative, David Tilson]

Mr. Collacott, please just go ahead.

[Martin Collacott]

Anyway, what the representative said was that to expand the convention would serve only to disadvantage those who are in most need by further diluting available funds. If the refugee division is drawn too broadly, we risk defining the problem into complete unmanageability. This issue comes up, for instance, in the case of the Roma people who have made claims, who came from Czechoslovakia. The argument was made that persecution, which is the definition for a convention refugee claimant, can be defined simply as when people are being discriminated against and the government isn't able to prevent it. If you use that kind of definition, we should take a hundred million untouchables from India, among others. None of the other 27 members of the European Union accept claims from Czechoslovakia, Roma or otherwise.

What we should do is have a list of safe countries of origin, countries that have good human rights records or are democratic and don't persecute their nationals. If we are to say, as one member did on October 8, that there is no safe country in the world—this was a witness—surely Canada isn't a safe country. Are we more perfect than New Zealand or Ireland or the Netherlands? Surely many of our native peoples could claim refugee status in other countries. We could then have all of them go to Czechoslovakia and have all the Roma come here, if you accept that kind of definition.

Last year we accepted people making claims from countries like the Czech Republic, Guyana, Hungary, Israel, Jordan, Peru, the Philippines, the Republic of Korea, Thailand, and the United States. No other nation in the world would consider a claim from those countries. Mr. David Anderson, who is the former Liberal minister--

[The Chair, Conservative, David Tilson]

Mr. Collacott, I'm sorry to interrupt you, but returning to Mr. Karygiannis' point, the committee is interested as to whether--and you are obviously qualified to speak on this--you favour this bill or not, and your reasons. Your comments are very interesting and relevant to a point, but I think that's what the committee is interested in.

[Martin Collacott]

Just to wrap up then, I think we're the most generous country in the world by far, and I can give you statistics to show that in terms of the high levels of acceptance of claims. People say that if we don't implement the RAD, we're not being generous enough. We'll still be the most generous country in the world by far.

I'll skip some of the other issues.

One of the things that was raised in the October 8 meeting was whether there's a security concern about the refugee system. I'll be glad to speak to that if any of the members are interested.

What we need is an overall overhaul of the system. The Auditor General of Canada made that very clear in one of her reports, and I don't think you can look at the RAD without looking at the whole system. The whole system is highly dysfunctional in many ways. The decisions are highly inconsistent among the various members. I think we have to look at the question of appointment of board members, how that's done.

I'll wrap it up there, Mr. Chair. I'd be happy to take questions.

[The Chair, Conservative, David Tilson]

Thank you very much, sir.

We'll now go in rounds, with each caucus having seven minutes for questions to either of you. We'll start off with Mr. Karygiannis.

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

Good morning, and thank you both for coming.

Mr. Collacott, it states here that you were a former ambassador to Asia and the Middle East. Can you state which countries and which years?

[Martin Collacott]

I was high commissioner to Sri Lanka from 1982 to 1986, when the civil war started and the refugee flows began. I was ambassador to Syria and Lebanon from 1990 to 1993, and I was ambassador to Cambodia from 1993 to 1995.

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

Thank you, sir. You certainly will appreciate the fact that in the countries you served in--be it Syria or Sri Lanka or Cambodia--and during the years you served, the situation changed day to day.

[Martin Collacott]

Some aspects did and some didn't.

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

In Sri Lanka, sir, between 1982 and 1986, the situation was changing daily. In Syria, between 1990 and 1993, the situation was changing daily. In Cambodia, by the time you left, the situation was changing daily.

[Martin Collacott]

It depends on what you want to say by “changing”. I don't think the basic elements did.