Citizenship and Immigration Committee on April 30th, 2012
A recording is available from Parliament.
On the agenda
- Les Linklater Assistant Deputy Minister, Strategic and Program Policy, Department of Citizenship and Immigration
- Peter Hill Director General, Post-Border Programs, Canada Border Services Agency
- Jennifer Irish Director, Asylum Policy and Programs, Department of Citizenship and Immigration
- Michael MacDonald Director General, National Security Operations Directorate, Public Safety Canada
- Alexandre Roger Procedural Clerk, House of Commons
- Joe Oliver Director General, Border Integrity, Royal Canadian Mounted Police
- Marie Estabrooks Manager, Biometrics Policy (programs and projects), Emerging Border Programs, Canada Border Services Agency
- Chuck Walker Director General, Canadian Criminal Real Time Identification Services, Royal Canadian Mounted Police
- Alain Desruisseaux Director General, Admissibility Branch, Department of Citizenship and Immigration
- Sean Rehaag Assistant Professor, Osgoode Hall Law School, York University, and Representative, David Asper Centre for Constitutional Rights - University of Toronto
- Audrey Macklin Representative, Professor, Faculty of Law and School for Public Policy and Governance, University of Toronto, David Asper Centre for Constitutional Rights - University of Toronto
- Barbara Jackman Lawyer, As an Individual
Dr. Sean Rehaag Assistant Professor, Osgoode Hall Law School, York University, and Representative, David Asper Centre for Constitutional Rights - University of Toronto
For the second half of the presentation.
The Chair David Tilson
You have a total of ten minutes to make your presentation, sir. You can use PowerPoint or you can just talk to us, whatever you feel comfortable with.
Our second speaker is a lawyer, Barbara Jackman, who will also have ten minutes.
Good morning to you, Ms. Jackman.
Professor Rehaag, you may start. You have up to ten minutes, sir.
Assistant Professor, Osgoode Hall Law School, York University, and Representative, David Asper Centre for Constitutional Rights - University of Toronto
My name is Sean Rehaag. I am a professor at the Osgoode Hall Law School. I am here with Professor Audrey Macklin from the University of Toronto's faculty of law. Both of us work primarily in the area of immigration and refugee law.
Professor Macklin and I share many of the concerns regarding Bill C-31 raised in the briefs submitted by the Canadian Association of Refugee Lawyers, the Canadian Bar Association, and the Canadian Council for Refugees.
Rather than attempting to summarize those concerns here, though, what we'd like to do is focus on two specific issues. I'm going to speak about the refugee appeal division and Professor Macklin is going to speak about why the bill should not provide new powers to the minister to remove permanent residence from refugees.
Let me jump right into the three quick points that I'd like to make regarding the refugee appeal division.
My first point is to remind the committee that refugee determinations are among the most serious decisions that are made in Canada. If individuals who meet the refugee definition are not recognized as such, they may be deported to countries where they face persecution, torture, or even death. Because of these life and death stakes, the Supreme Court has found that refugee determinations implicate constitutional rights to life, liberty, and security of the person.
The second point I'd like to make is that all administrative decision-making processes are prone to error, and refugee determinations are no exception. If anything, refugee determinations are more likely to result in errors due to the inherent challenges of this type of decision-making. These challenges include having to make factual findings about what may happen in the future in distant countries, and having to make credibility determinations based on the testimony of claimants who may be suffering from post-traumatic stress, who often come from very different cultural backgrounds, and whose testimony is typically filtered through an interpreter.
In addition to these challenges, there's extensive evidence showing that IRB refugee decisions are all too often arbitrary. For the past six years I've published statistics on the Canadian Council for Refugees' website setting out annual grant rates for IRB refugee claim grant rates. Each year dramatic variations are evident in these grant rates, with some members granting refugee status in almost every case they hear and others granting refugee status seldom, if at all.
Even when factors such as country of origin are taken into account, massive, unexplained variations in refugee claim grant rates persist, suggesting that outcomes turn at least in part on the luck of the draw, on who decides the application. In this context, errors in IRB refugee decisions are not only inevitable, they are likely common.
So my second point is that given both the likelihood of errors and the life and death stakes involved, it's essential that claimants have access to an appeal that can reliably catch errors.
My third point is that aside from appeals on the merits to the refugee appeal division, there is no reliable way of catching errors in refugee determinations. It is of course possible to apply for judicial review in Federal Court. However, judicial review is highly constrained. Refugee claimants must ask for leave or permission from the court before getting access to a hearing. In the vast majority of cases, about 85%, leave is denied. Even where leave is granted and a hearing is held, there are constraints on the process. Most importantly, the Federal Court rarely reconsiders factual findings or credibility determinations made by the IRB. Most cases actually turn on these factors.
In addition to these procedural constraints, there is evidence that the Federal Court's decision-making in this area is inconsistent. Earlier this year I released a study that examined over 23,000 applications for judicial review of refugee decisions from 2005 to 2010. During this period some Federal Court judges granted leave in 1% of cases and others in more than 70% of cases. So really it's the luck of the draw; outcomes turn on who decides the case.
Taken together, the procedural limits on judicial review and the evidence of inconsistent decision-making at the Federal Court suggest that judicial review cannot reliably catch errors in IRB decisions.
In my view then, because of the life-and-death stakes involved, because errors are inevitable, and because judicial review cannot catch these errors reliably, it is essential that all refugee claimants have access to an appeal on the merits. Bill C-31 removes appeal rights for some claimants, and my recommendation is that these appeal rights be restored.
April 30th, 2012 / 11 a.m.
Prof. Audrey Macklin Representative, Professor, Faculty of Law and School for Public Policy and Governance, University of Toronto, David Asper Centre for Constitutional Rights - University of Toronto
Like Professor Rehaag, I want to thank you for the opportunity to appear in front of you today.
I am going to address the impact of provisions in Bill C-31 that seek to expand the circumstances in which permanent resident status of refugees can be revoked.
I have three questions that I seek to answer here. First, does Bill C-31 confer new powers on the minister? Yes. Are these additional powers necessary to achieve legitimate policy objectives? No. Can Bill C-31 be amended to align its provisions with those legitimate policy objectives? Yes.
First, it is important to understand what the status quo says. As IRPA currently exists, it is possible for the minister to seek what is called vacation of refugee protection under section 109. Vacation of refugee status is the process by which the minister seeks to revoke refugee status of somebody who never needed refugee protection in the first place. That is somebody who acquired the refugee status through misrepresentation or fraud.
If the minister is successful in obtaining vacation before the Immigration and Refugee Board, then that person's refugee status is lost as well as permanent resident status. There is a certain harmony to that, because of course, misrepresentation is also a basis for revoking permanent resident status. For refugee status lost for misrepresentation, the consequence is loss of permanent resident status for misrepresentation.
Under the current law there is also a different provision called cessation. The minister may seek cessation of a refugee status where the person no longer needs refugee protection, and the evidence from which one might infer that refugee protection is no longer required might consist of a variety of possibilities, including for example, re-availment of protection in the original country, or a change in circumstances in the country of origin such that there is no basis for currently fearing persecution in that country of origin. That's vacation, where refugee status was never needed, and cessation, where refugee status is no longer required.
Under the current law, when a claim is cessated, it does not follow that permanent resident status is also revoked. Why? That is because the person concerned has not necessarily done anything that is inconsistent with maintaining permanent resident status. There is no misconduct, as it were.
What does Bill C-31 do? It visits the same consequence of automatic loss of permanent resident status on one whose refugee claim is cessated that is currently visited on one whose refugee claim is vacated. In order to understand the difference, I want to give you two scenarios of circumstances where permanent resident status would now be lost under Bill C-31, where it would not be lost under IRPA as it currently exists.
For example, in one scenario a refugee comes from Bosnia in 1993. She obtains permanent resident status. In 2008 she returns for a year to work for an international organization in Sarajevo. She lives peacefully in Bosnia for a year, returns to Canada. Under Bill C-31 the minister could seek to have her refugee claim cessated, and if successful, the automatic consequence of that would be loss of permanent resident status.
Another example, a refugee claimant from Rwanda comes in 1994 and obtains permanent resident status. He sponsors his wife. They raise a family in Canada. At some point, let's say in 2012, the minister decides that it's now safe for Tutsis in Rwanda and so he seeks to cessate this person's refugee claim. If successful, on the basis of a change of circumstances in Rwanda, then this person's refugee claim would be lost as well as permanent resident status, and almost 20 years after the fact, that person would be automatically removable, deportable, to Rwanda.
The consequences of this amendment under Bill C-31 is deportation of people who are long-term permanent residents in Canada with no recourse, and no appeal to the immigration appeal division, for people who have done nothing wrong, and indeed, in the case of a change of circumstances in the country of origin, they have done nothing at all. They have merely been living their lives in Canada.
There are no limits to the power of the minister's discretion to exercise this new power. That puts all permanent resident refugees at risk. They will never know if, when, or why the minister might seek cessation of their refugee status.
The Chair David Tilson
Perhaps you could wind up, Professor Macklin.
Representative, Professor, Faculty of Law and School for Public Policy and Governance, University of Toronto, David Asper Centre for Constitutional Rights - University of Toronto
On alternatives, delete clauses 18 and 19 from Bill C-31. The existing powers under IRPA already authorize the minister to seek revocation of a person's permanent resident status if it is obtained through fraud or misrepresentation. Alternatively, add a presumption in the vacation provision to clarify circumstances where a return to the country of origin shortly after obtaining refugee and permanent resident status is the basis of evidence of misrepresentation of fraud in the acquisition of that status.
The Chair David Tilson
Thank you very much.
Barbara Jackman Lawyer, As an Individual
I am critical of the legislation, and I just want to make a couple of opening statements on my position on this legislation.
First of all, immigration is about the management of people. The rules apply to individuals, and if the rules are absolute and strict, people fall through the cracks or don't have their cases looked at in a way they should be looked at because they don't fit within the criteria properly.
Secondly, we have the Charter of Rights and Freedoms. You as parliamentarians are responsible for ensuring that the legislation complies with the charter. One of the things that has always bothered me—and I've been practising for 35 years in this area—is that legislation parliamentarians have passed gets twisted in the practice. People you never intended to exclude from protection are excluded because you didn't understand the consequences of the legislation you were passing. I don't believe that people here would have passed some of the legislation that's been passed that has harmed people if they had known that was going to happen.
Thirdly, every time you put an absolute bar in legislation you make it open to challenge, because absolutes often don't comply with the charter. For example, persons who are excluded from the system may have good reasons to have their refugee claims determined. For a person who has lost their pre-removal risk assessment there's a 12-month bar on making another application. It may be that conditions in the country changed before they were moved, but by making an absolute and prohibiting them from being able to make a second PRRA if the conditions warrant it, you force them into court on a constitutional challenge. That's the problem with absolutes.
I know there is concern that lawyers will have a self-interest in coming before you because we make our living from representing refugees. Believe me, we will make a lot more if you don't change this legislation than we will ever make if you make it a fair process. So that is a lame excuse for ignoring the kinds of things we say.
I have spent my entire practice challenging legislation that is unfair. We have been fairly successful from Singh in 1985 to Charkaoui in 2007. I can tell you that Charkaoui is based on absolute detention without a review.
When I read the first bill I couldn't believe it. We spent years challenging arbitrary detention without having a timely review of the need for detention. We finally won in the Supreme Court in 2007, and then you turn around and put in legislation that arbitrarily detains people for a year without a review. That's not appropriate. The Supreme Court just said you couldn't do that, so why is it being done now? I don't understand it. It's opening the legislation to challenge. Maybe the government thinks it will stay in place until the court strikes it out, and will achieve their purpose. That's not the way to pass legislation to govern immigration to Canada.
Fourth, the present system works. If you have ever sat in a detention review before an immigration division member, the government wins most of the time. If the government wants a person detained they are likely going to be detained until you can work out an agreement with the Canada Border Services Agency to have them released. Neither the immigration division, the refugee protection division, nor the federal court are particularly sensitive or sympathetic to the rights of non-citizens. The government has the highest success rate, not the person.
The system works fine the way it is now. You don't need to arbitrarily detain people when you have a member of the immigration division who's going to do it anyway. If there's a need for the person to be released, that member will release them. That's as it should be, because some of the people who are detained are victims of horrific events in the past. I think it's wrong to arbitrarily detain a person for a year who is suffering from post-traumatic stress and has experienced severe torture. We've seen people like that. I have one client who doesn't have a jaw and was detained for six months. He doesn't have a jaw because he was bombed in a war. That person shouldn't be in detention for an extended period of time, because it just exacerbates the problem.
The last sort of general point is that in the end we want whomever we accept as refugees to integrate and be functioning members of society. You cannot do that if you first punish them by detention for a year, if you bar them from being able to bring their families. How best do people settle and integrate? They settle and integrate with family members with them. That's not in this legislation. Instead, even though we have an obligation in international law and under our charter to allow these people to remain in Canada, we cut out the possibility of them being able to settle successfully.
I have clients who are on disability because their cases have not been settled for an extended period of time. Over time I see the decompensation that they go through. I see the destruction of their lives and the integrity of the person, the breakdown. It's not fair, it's not human, and it's not in keeping with our humanitarian tradition towards refugees. If we're going to keep them, treat them fairly. We have an obligation to keep them if they are refugees.
There are a couple of specific points that I know are not going to be covered by other people. One is the travel documents. This legislation prevents people from getting travel documents until they are permanent residents. You don't realize that travel documents have been an escape for our clients. I have clients who are in limbo. Canada has decided it will not deport the person, but it will also not land them. So some of them have been here 10 years, 20 years, 30 years, or longer. During that time, if you take away the right to the travel document, which is a right under the convention for refugees, for people who are recognized as refugees, they can't even travel out to visit family.
In one of my client's cases, she has a relative who's a doctor. She can get medical care from him in another country. She can't get it in Canada because she's not landed. It's an important escape valve for people. It's important to let them be able to make necessary trips on travel documents, even if they're not landed, particularly as this government will just allow people to live in limbo. It's not just this government; it's the government before. These cases go back 10 to 20 years. We're not deporting them, so at least let them travel.
Again, I'm picking up on different points that I know are not likely going to be covered from reading the briefs that have been put before you. One is the inability to reopen for a breach in actual justice. The legislation amends section 171 to prevent reopening of refugee claims if the person has already lost on the refugee appeal or in the Federal Court.
I'm not sure you can do that. You can certainly cut out an appeal, but you can't cut out an appeal on arbitrary grounds. It has to be on grounds that make sense. The grounds for restricting the appeal in this case are not logically related to the concerns of the legislation, in some instances. Certainly, on a failure to permit reopening where there's been a breach in actual justice, I don't think you can do that. The charter doesn't let you do that. If there's a breach in actual justice, the proceeding is annulled. The decision can't be acted upon. There has always been a right to go back and say, “Look, for some reason, you missed the fact that this person is mentally challenged, and you should have looked at it. The case should be reopened and considered again”.
The last point I want to make is on the bars and any way out of the five-year bar. If you're a designated foreign national, you're barred from landing for five years. If there's any kind of breach of your conditions of release, it's another 12 months after that, so it can be a long period of time. Then it takes two or three years to get landed, so we're looking at 10 years for some people to be able to settle with their families in Canada. That's wrong. That's far too extended.
There isn't any way around that. I don't know if you realize this legislation cuts out temporary resident permits, and humanitarian and compassionate. Humanitarian and compassionate discretion, a discretion to allow people to get out of the restrictions of the act, has been there since we've had legislation, with no restriction. Since 1910 we've had legislation, and there has always been a discretion.
This legislation started the last time to restrict the humanitarian and compassionate discretion, but not restricting who had access to it. This restricts who has access to it. That is unheard of in our history. If you take away that kind of discretion, you force us into court. And you're going to end up with a constitutional challenge, in which, I bet, at the end of the day, the court's going to say, you have to let someone make an application, you have to have this considered because there are too many human rights engaged by the process for you to be able to just cut it out. So you're just asking for a challenge. Why do that? Why not make it right to begin with?
The Chair David Tilson
Thank you, Ms. Jackman, for your presentation.
The committee will have some questions.
Rick Dykstra St. Catharines, ON
Further to your comments at the end about H and C, Ms. Jackman, obviously, in your mind and based on your experience, you have a tonne of examples of why someone from a designated safe country would have a number of reasons to have lost their case but have an argument to be made on H and C.
Could you provide me with three or four examples of how someone from a designated safe country would have lost their case and now seek humanitarian and compassionate...?
Lawyer, As an Individual
Probably one of the most common examples is persons who are gay who come from countries that don't tolerate gays. They may not be recognized as refugees because the level of risk they face is not the kind of risk that amounts to persecution or torture or cruel treatment. It's the kind of situation where they will never be comfortable in those countries. Those kinds of people need the humanitarian and compassionate—
Rick Dykstra St. Catharines, ON
You do understand that we accept that. With respect to how we designate safe countries, this would be one of the exemptions to that in terms of being able to qualify.
Lawyer, As an Individual
Okay. I wasn't aware of that, actually, but I think it's important for people who fall through the cracks to be able to have their cases considered.
Rick Dykstra St. Catharines, ON
That's not the point, though. The point is that we are taking into account humanitarian and compassionate grounds. That may not be available to a person from a designated safe country, but when they have their application heard to begin with, you're darn right that will be part of the process in terms of understanding that if a person is going to be persecuted in their home country because they're gay, and we have designated that country as safe, they will be allowed to stay here in Canada and have the refugee—
Lawyer, As an Individual
That may be, but that's a refugee claim; it's not a humanitarian claim.