Citizenship and Immigration Committee on May 2nd, 2012

[The Chair, Conservative, David Tilson]

Have you been here before?

[Prof. James Milner]

I have not.

[The Chair, Conservative, David Tilson]

You must have done something famous, because your name sounds familiar. Have you written a book, maybe?

[Prof. James Milner]

I have.

[The Chair, Conservative, David Tilson]

There you are. I probably haven't read it.

[Prof. James Milner]

I don't have it for sale at the back.

[The Chair, Conservative, David Tilson]

Okay.

We also have Chantal Desloges. Good afternoon. You are a lawyer.

[Chantal Desloges, Senior Lawyer, Chantal Desloges Professional Corporation]

Yes.

[The Chair, Conservative, David Tilson]

You each have up to 10 minutes to make a presentation.

Professor Milner, you can go first.

[Prof. James Milner]

Thank you, Mr. Chair. I am very grateful for the committee's invitation and for this opportunity to appear before you today.

While Bill C-31 would affect Canada's domestic refugee system, my presentation today considers the implications of Bill C-31 for Canada's international refugee policy.

The current strategic outcomes and program activity architecture for Citizenship and Immigration Canada specifies that CIC, along with its partners within the Canadian government, aims to influence the international refugee policy agenda by participating in a range of multilateral, regional, and bilateral forums. In fact, CIC, working with CIDA and DFAIT, has had considerable success in pursuing this objective and especially in demonstrating international leadership and influencing the international approach to the issue of protracted refugee situations, which is a topic I will speak about in just a moment.

My concern with Bill C-31 is that it contains three elements that would likely undermine Canada's ability to pursue this objective, as they could have a negative effect on Canada's ability to influence its position within the global refugee regime. These three elements are ministerial authority and the designation of safe countries of origin, the use of detention in response to irregular arrivals, and provisions for the revocation of permanent residence status, especially for refugees who have been resettled to Canada.

My commentary on Bill C-31 today is informed by the findings of a research project I have co-directed at the University of Oxford for more than 10 years. The project has examined the politics of the global refugee regime and how certain states, like Canada, are able to promote an agenda that is focused on solutions for refugees. This research has found that Canada has been quite successful in influencing refugee policy at both an international and a regional level. I would be happy to provide some examples of these successes in the question time. I won't get into them now, in the interest of time.

Our research has indicated that Canada's ability to play this leadership role is primarily a result of its moral authority, its demonstrated commitment to multilateral cooperation, and the reputation it has for a fair and impartial domestic asylum process. In contrast, we have found that countries that adopt restrictive legislation, especially legislation that includes provisions for mandatory detention and measures explicitly intended to deter the arrival of asylum seekers, lose their ability to influence the global refugee regime, especially when it comes to negotiating with refugee-hosting states in the global south.

In the interest of time, I would like to provide some background on the global context before I focus my comments on these three elements of concern and suggest amendments for the committee's consideration.

The past 20 years have witnessed an important shift in the global refugee system. One of the manifestations of this shift is the rise in so-called protracted refugee situations. These are situations were refugees spend a minimum of five years in exile without a durable solution to their plight. Some two-thirds of refugees in the world today—that's 7.2 million refugees—are in a situation of prolonged exile, and 80% of these refugees remain in their region of origin. In fact, some of the largest refugee hosting states in the world today are countries such as Pakistan and Kenya. These are countries that face many of their own challenges with stability and development.

Many of these hosting countries respond to the mass arrival and prolonged presence of refugees by requiring refugees to remain in refugee camps. These camps are frequently very isolated and very insecure places, where refugees do not enjoy the freedoms and rights afforded to them under the 1951 convention, such as freedom of movement and the right to seek employment.

While the precarious condition of refugees in these camps is problematic, perhaps more alarming is our demonstrated inability to find solutions to protracted refugee situations. In 1993 it took an average of nine years to resolve a refugee situation. Today it takes closer to 20 years to resolve a refugee situation.

Canada has identified the resolution of protracted refugee situations as an international priority. Through its statements to the UNHCR's executive committee and to the UN General Assembly, Canada has called for international action to address these situations and make solutions for refugees more predictable. This priority has been echoed in CIC's own strategic outcomes and program activity architecture, specifically, strategic outcome 2, program activity 4.

Canada has primarily used mechanisms to advance this priority of helping to resolve refugee situations.

The first is refugee resettlement. The government should be congratulated for announcing that Canada will resettle as many as 14,500 refugees a year. This would confirm Canada as the second largest refugee resettlement country in the world.

It would, however, be problematic to conclude that protracted refugee situations can be resolved through resettlement alone. The current global total of resettlement opportunities is about 80,000 opportunities a year. With 7.2 million refugees eligible for resettlement, it would take 98 years to resolve protracted refugee situations through resettlement alone. This is why Canada uses diplomatic engagement in combination with resettlement to play a leading role in resolving protracted refugee situations.

Based on Canada's moral authority in the global refugee regime, it has been able to lead negotiations internationally and at a regional level to move protracted refugee situations towards their resolution through a combination of resettlement, repatriation, and local integration. I would argue that this is a very cost-effective way to strengthen the global institution of asylum and to seek solutions for specific refugee situations.

As I have mentioned, Canada has been able to play this role because it has moral authority in the global refugee regime. It has a demonstrated commitment to multilateral cooperation, and it has a reputation for a fair and impartial domestic asylum process. In stark contrast, other states in the industrialized global north, especially some European states and Australia, have been seen to lose influence and moral authority in the global refugee regime as a result of the adoption of more restrictive asylum policies at home. Again, in the interests of time, I won't go into these examples of how this happens, but I'd be happy to talk about that during the question time.

Given the importance of Canada's moral authority in pursuing its interests within the global refugee regime, and given the role that changes in domestic policy and practice have had on the moral authority of other states within the regime, I submit that it is important to consider the international implications of Bill C-31. There are three elements of Bill C-31 that would likely undermine Canada's moral authority within the global refugee regime.

My first concern relates to ministerial authority and the designation of safe countries of origin. Negotiations with host states in the global south on refugee policy frequently include considerations of the importance of depoliticizing refugee issues and the value of transparent and bureaucratic decision-making mechanisms when responding to the arrival of asylum seekers, either through individual or mass arrivals. Canada's ability to make this argument with host states in the global south would be undermined by the provisions of the bill that give the Minister of Citizenship and Immigration discretionary power to designate certain countries of origin as safe.

I therefore recommend that the bill be amended to mandate an independent advisory panel of experts the task of compiling and maintaining this list of safe countries of origin.

My second concern relates to the use of detention in response to irregular arrivals and designated foreign nationals. The use of mandatory detention as a deterrent against the arrival of future asylum seekers has not only been demonstrated to be ineffective and extraordinarily expensive, especially in the case of Australia, this provision has been a central feature of the restrictive asylum policies in the global north that states in the global south have identified as a justification for limiting the range of rights they afford to asylum seekers and refugees on their territory. Canada's ability to encourage host states in the global south to move away from the encampment of asylum seekers and refugees and the provision of greater freedom of movement would be undermined by the detention provisions detailed in the bill.

I would therefore recommend that Bill C-31 should be amended to remove reference to the mandatory detention of irregular arrivals and designated foreign nations.

My third and final concern, and I'm moving to my conclusion here, relates to the provision of the revocation of permanent resident status. A central priority for Canada's engagement with the global refugee regime has been to encourage every opportunity for refugees to secure a permanent and durable solution to their plight. Canada's ability to make this argument internationally would be significantly limited if Bill C-31 contained provisions through which refugees who have been resettled to Canada and granted permanent residence could have this legal status revoked, except in cases where it is demonstrated that the application for resettlement was obtained through a fraudulent claim, and here I would refer to Professor Audrey Macklin's testimony earlier on, vacation versus cessation—

[The Chair, Conservative, David Tilson]

We're almost out of time, sir.

[Prof. James Milner]

I would therefore recommend that the bill be amended to remove reference to the revocation of permanent residence for resettled refugees.

With that, I say thank you, and I look forward to your questions.

[The Chair, Conservative, David Tilson]

Thank you very much.

Ms. Desloges.

[Chantal Desloges]

Thank you.

I'm an immigration and refugee lawyer. I've been practising exclusively in the area of immigration and refugee law for about 13 years.

I'm a certified specialist in both immigration law and in refugee law. I'm one of only about a dozen people to hold both specialist designations from the Law Society of Upper Canada.

I say that not only to let you know that I know what I'm talking about, but also to reinforce the fact that I'm a bit of a rare animal, in the sense that I understand both the refugee side of our immigration policy as well as the economic side of immigration, which I think is somewhere I can add value to your committee.

I'm a Canadian first; I'm a lawyer second, in that order.

I believe that our Canadian immigration policies are for the benefit of Canadians, and not primarily to benefit the rest of the world. Having said that, I do see positive benefits for Canada upholding our humanitarian values and our obligations under international law, but within reason.

I think there is such a thing as being so open minded that your brain falls out sometimes.

I strongly support a lot of the measures that the current government has taken over the past few years with respect to immigration reform—not all of them necessarily, but the majority of them I have agreed with. There does come a time, however, when you need to give a little tough love when one sees certain initiatives that you cannot uphold in good conscience. Think of me as the friend who grabs you back from the curb as you're just about to step into traffic. That's how I feel.

I have only 10 minutes, and I'm mindful of the fact that many colleagues who are much more learned than I am have spoken before me. I am going to focus on just four very quick issues, and I'll leave the rest of the time for questions.

I have prepared a PowerPoint, which is meant to complement what I'm saying, not be a substitute. I'm not going to read from the slides, so you're going to have to do a little work: you're going to have to read and you're going to have to listen to me at the same time.

The first issue is the use of the designated country of origin list.

For the record, I do disagree with a lot of my colleagues in the refugee bar who unilaterally oppose the use of any designated country of origin list. I think there is room for a designated country of origin list, if it's used in the right way.

Keep in mind that even with a DCO list, claimants will still be able to make their refugee claim. They will still have their day in court, but some of the other checks and balances, such as right of appeal and things, will be restricted for them. I think that system probably would be constitutional, if it's properly applied.

Frankly, I think it does make us look a little ridiculous if we're giving all the checks and balances to people who could be making a claim, for example, from the United States. I think that damages our credibility.

Where I do have a concern about the DCO list is in the decision-making procedure for who gets on this list. That's a deep concern to me. I should say that I think it's pretty obvious to everyone in the room that this DCO list was designed to address a specific situation with two countries, and let's be honest and name them, Hungary and Mexico. Everybody knows it. Maybe people don't say it so explicitly, but it's well known. I think that reacting to a specific negative situation is not the best way to make policy. You risk throwing the baby out with the bathwater.

I have major concerns that concentrating the power of the DCO list only within the ministry and not consulting a panel of experts is wrong, because it opens the system to major political influence.

In the previous incarnation of this bill, the DCO list was decided by a panel of experts, and as a professional, I would be comfortable with that. However, leaving that decision to the sole discretion of the ministry is not a good idea.

The second issue is the proposal to permit permanent resident status to be removed from refugees who cease to be refugees. I differ a little from my friend who has just spoken on this. I think that proposal is supportable. First, it allows us to extend protection when it is needed and still uphold our international humanitarian and international law commitments. At the same time, it reserves us a little extra tool in our tool kit to get rid of people who may be undesirable and who are no longer in need of our protection. I find that a reasonable compromise

. I think we have to keep a broader perspective in mind that anyone who is declared to be a refugee after a couple of years will also be able to apply for citizenship, and after getting citizenship, they will have the right to remain in Canada permanently.

The minister will still have to show to the refugee board why this person has ceased to be a refugee. I think that is a reasonable protection that is put in place to make sure it's not misused against people who really do deserve that protection to be extended. Because the cessation process is complex and time consuming and it requires effort, I don't think it would be used lightly. I don't think it would be used that often. So that does quell my concern a little bit for those people who have said it would leave people feeling fearful of having their refugee status revoked at any time because of a change of country conditions. I just don't think, practically speaking, that's the way it would work out.

A third issue is the accelerated timeline for filing the basis of claim document and for having your hearing before the refugee board and the Refugee Appeal Division. I strongly support any move that would accelerate timelines for refugee claims. That's pretty much universal. I can't think of any of my colleagues who would disagree that making things faster is a good idea. However, this 15 days, 30 days, 60 days, etc., is just completely unworkable. I'm telling you as an expert who has worked a lot in this system that it is set up to fail. It is impossible to work with. It's not only a problem for the claimant, it's not only a problem for the lawyer, but I can't even imagine what kind of a nightmare this will be for the Immigration and Refugee Board to have to make decisions within that kind of a framework. I don't know who in the department thought it would work, but I can assure you it will not work. Shortened timelines definitely are a good idea, but this kind of a shortened, accelerated timeline is just too much. It cannot work.

As far as I know, there is no new money going to the board. They're already having a hard time making decisions within the timeframe they have. I can't imagine how they're going to make them ten times faster with no new money into the system. I think it's setting it up for failure, and I would be surprised if anyone on the board would really tell you anything different.

The timelines also ignore the practical realities of what goes into making a refugee case. I have lots of experience in the system. Fifteen days is not enough time for someone to come into the country, hire a competent counsel, prepare their claim in writing, and submit it. It just isn't. What is going to end up happening is people will either go before the board completely unrepresented, or you are going to drive them into the hands of crooked consultants and the lowest common denominator of representation, because that's all they will be able to get within that timeframe.

This is going to be a headache for decision-makers because competent representation adds value within the system. A competent counsel will make sure that the evidentiary rules are respected, that things are filed on time, that the proper evidence is collected in order to increase the quality of the decision-making for the decision-maker. With such a short timeline, you're going to force decision-makers to make decisions under the worst possible conditions, and it's not going to work.

I guarantee you this system, if implemented, will not be faster, and I'll tell you why. People are going to be forced to postpone and adjourn claims at an unprecedented rate. And if those requests to postpone those cases are not granted, it's going to end up in the Federal Court and people will win, because it's a denial of natural justice if a person does not have a reasonable opportunity for counsel.

Finally, on the one-year bar on H and C applications, you have the materials in the PowerPoint. I think it has been given to you. There are some examples of why this is a bad idea. People should not be forced to choose between having their claim determined on a protection basis versus a hardship basis. The one-year bar is arbitrary. Why is it one year? Why not have it six months. Why not two years? It just doesn't make any sense. There is no reason that humanitarian claims can't be decided quickly. I'm getting some back in as little as four months now on some of my cases. It's not going to introduce any undue delay into the system. It doesn't stop deportation even now. So if the concern is that it impedes the removal of people from Canada, it's not doing that. It's not doing it now and it wouldn't do it in the future. In order to impede removal, they'd have to go to the Federal Court and convince a judge on a very strict test. In my opinion, this change is simply not necessary. It doesn't add any value to the system.

I want to close by saying that I appreciate that this government is making efforts to streamline the system. It takes a lot of guts, a lot of intestinal fortitude, to tackle this stuff. It's a lot of work. I appreciate that, but my encouragement to you is that you have a chance to do it right.

I would love the opportunity to answer your questions on this, and I really hope you will take the opportunity to do this properly

[The Chair, Conservative, David Tilson]

Thank you.

There will be questions, starting with Mr. Weston.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Mr. Tilson, and thank you both for being here.

I'm intrigued to read, Mr. Milner, about your background and some of the work you've done in Burundi and other places. I've stood on the ground in Burundi, where I've seen internally displaced persons who have been moving year after year, first to Rwanda and then back to Burundi, in what seemed like hopeless and hapless circumstances. Through Food for the Hungry, a group I was involved with as the chair, funded in part by CIDA, this group is secure and in a successful potato farming industry.

What you're talking about can happen. It's great to know that you think Canada has had some influence in helping people on the ground in these places, as opposed to the only remedy being to open our doors to an insupportable number of people, all coming here.

Let me ask a couple of questions. Ms. Desloges, I pay tribute to you for the things you do, how you do them, and the people you help. You're not saying that all the decisions are going to go against the applicants because of the expedited timelines. You're just saying that the decisions are going to be made in what you think are inappropriate ways. Yet we heard from people in New Zealand just yesterday that they're able to process their refugee decisions in about 15% of the time that we're processing our refugee decisions.

Do you want to reflect on that? You did say that we all agree we should be expediting things. You think for some reason this timeframe is unsupportable. It doesn't mean it's going to run against the applicants. You just think it's going to be difficult for people to make decisions in that timeframe.

[Chantal Desloges]

No, I think in most cases, it will work against the applicants—not all the time, but most of the time. The reason is that if someone is going to prove a case, to do that within such an accelerated timeframe is unreasonable. I believe you're a lawyer by background. To expect somebody to present a full case with documentary evidence under less than ideal conditions, possibly with expert evidence, is unrealistic within that timeframe.

An unproven claim without documentary evidence is going to weigh against the applicant. I don't know the numbers for New Zealand, but I would expect that their system is probably processing a lot fewer people than ours, even on a per capita basis. I think the board can move a lot faster than they are right now, but there's no justification for the crazy acceleration of time that we're seeing in the bill.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Let me go back to you, Professor Milner, on the question of detention. What if I put to you the prospect that our proposed detention scheme is actually something that will increase the world's regard for us. If we don't have a detention scheme in place, we may not be able to even continue welcoming the numbers that are now coming in. The detention scheme, from my perspective, is a way to bolster the refugee system to make sure it's immune to criticism by Canadians who think we shouldn't be letting these people in.

There were 41 people who came off the two ships who, in fact, were legitimate cases for detention. They were either war criminals or they posed security risks. We have to have a good detention scheme in place, not because we want to detain people, but because we want to protect our country. Can't we make that case and continue our influence in the world?

[Prof. James Milner]

That's a very good question. Given the argument that I'm presenting, I come at this from an international perspective. I'm not a lawyer, so to look at the legal provisions of detention I defer to others who are more informed on that.

Look at examples of other countries that have introduced mandatory detention of arrivals by boat, specifically by boat, first as a way of trying to maintain public confidence in the asylum system, and second as a way of trying to maintain their level of commitment in the world. The most prominent case that comes to mind is the case of Australia in 2001, which introduced what became known as the Pacific solution.

I was doing research in Kenya at the time when the Pacific solution was introduced, and Australia was one of a number of donor countries in Kenya at the time that were trying to encourage the Government of Kenya to reduce the limitations on freedom of movement for Somali refugees who had been in the Daadab camps at that time for 10 years. They have now been in those camps for 20 years. The response that came back, that we heard informally, is the argument that Australia is able to maintain public confidence in their asylum system, but Kenya is not allowed to maintain closed camps to uphold their asylum system. It comes across as a question of double standards.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

I hear that.

You didn't raise that, Ms. Desloges, as one of your four. So may I take it that you understand and accept the rationale behind it? It's not because we want to be mean to people who are already coming from terrible conditions. It's because we want to make sure that we can continue to accept refugees, that we have this to check their identity and to make sure they don't pose a safety risk.

Can you comment on that?

[Chantal Desloges]

No, the fact that I didn't comment on it doesn't mean I agree with it. Mandatory detention for a long term is simply unconstitutional. I'm not going to talk about fairness. I'm not going to talk about bleeding heart issues. It's simply unconstitutional. The courts will not uphold it. One year is arbitrary. Why one year? Where did the one year come from?

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

It's a specific number and it enables the persons to be freed if in fact their identity is proven. Or they can always apply to the public safety minister to be released within the year. So that can happen.

I don't see the constitutional problem that you are raising there. I think most people would agree we would be foolish to let everybody come in as a refugee, given that maybe only 0.1% of them pose a security risk, but that's enough to say to many Canadians, “I'm sorry, we can't have the risk of someone like that settling in our neighbourhood.” Our compassion, which is invested through our government into a very vibrant refugee system, will be cut off. We can't afford that.

[The Chair, Conservative, David Tilson]

We're out of time, sir, I'm sorry.

Ms. Sitsabaiesan.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you to both of you who are here today with us.

Mr. Milner, you were talking about the overall themes of refugees, mandatory detention, and designated countries. Can you comment on the impacts of refugees who are trapped in protracted refugee situations?

Overall I have about seven minutes and I have about three or four questions for you.

[Prof. James Milner]

The impact on refugees in protracted refugee situations—on refugees themselves or on the states and communities that host them?