Evidence of meeting #37 for Citizenship and Immigration in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was refugee.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Carole Dahan  Barrister and Solicitor, As an Individual
  • Andrew Brouwer  Barrister and Solicitor, As an Individual
  • Imre Helyes  First Counsellor, Head of Consular Section, Embassy of the Republic of Hungary
  • James Milner  Assistant Professor, Department of Political Science, Carleton University, As an Individual
  • Chantal Desloges  Senior Lawyer, Chantal Desloges Professional Corporation
  • Mary Crock  Professor of Public Law, Faculty of Law, University of Sydney, As an Individual

5:30 p.m.

Professor Mary Crock Professor of Public Law, Faculty of Law, University of Sydney, As an Individual

Thank you very much.

I would first like to thank the committee for inviting me to make a presentation. I am very grateful.

I am going to speak in English, but I can answer the questions in either English or French.

5:30 p.m.

Conservative

The Chair David Tilson

You can speak in French or English.

5:30 p.m.

Prof. Mary Crock

Thank you very much for the opportunity to speak to you.

I have spent some time in Canada. In fact, I was in Canada during the period of September 11, 2001, when Australia took the opportunity to change its laws quite dramatically so as to become much more punitive towards people arriving by boat.

I would like to address, in particular, in my opening remarks, the changes proposed in Bill C-31, which involve the treatment of irregular arrivals through the introduction of mandatory detention of one year and the introduction of temporary protection visas.

It is our view that the amendments place Canada at risk of breaching obligations it has assumed under international law. I see that you have already had a number of people address you on this issue.

I would also, however, like to talk to you about Australia's experience and the extent to which the laws you are now envisaging for Canada have had very detrimental effects in Australia. I will leave my Canadian colleagues to spell out how I think the proposed laws would be in breach of Canada's Charter of Rights and Freedoms.

I'm sure you've had many people expressing their disappointment that Canada appears now to be engaging in something of a race to the bottom in terms of its standing as a humanitarian country. Not only, I think, is it abandoning ostentatiously the role it has played in modelling international legal best practice in human rights, but it appears to me to be going out of its way to cherry-pick all the elements of regressive bad practice that have been devised by its two main comparative countries, Australia and the United States.

The sadness for me, I think, is that in doing this, Canada is setting itself on a slippery slope from which it will be very difficult to return. This has been Australia's experience. Put simply, in practical terms, I do not think the measures you are proposing to introduce will act as effective deterrents to irregular migrants. They are likely to have huge financial, and more importantly huge social, costs.

I do acknowledge, however, that the measures you are looking to introduce are powerful electoral tools. They work, in fact, to foment and focus unease with persons of visible difference in society. For this reason, in societies like ours that are heavily multicultural, they can be socially very damaging. In this respect, in fact, the laws represent some of the most cynical initiatives governments can take to play to what we might call the redneck elements of society.

Our former Prime Minister, Paul Keating, in fact, referred to Australia's version of these laws as “lifting the rock”. He could have added, “stirring the scorpions”, un véritable noeud de vipères.

If I may, I'll just briefly talk to the two measures we want to focus on. First is the introduction of one-year mandatory detention. Australia's mandatory detention laws, you may be interested to know, began as laws that, in fact, mandated detention for nine months. In fact, they specified 273 days and were put in place for a group of about 400 asylum seekers from Cambodia, who were also, interestingly, styled “designated persons”. I should tell you that they in fact remained in detention for four years before they were ultimately sent back to Cambodia and then brought back to Australia, where they were all given permanent residence.

I think the changes you are proposing are of quite critical significance, because as I say, they are, for me, the thin edge of the wedge that is likely to see Canada introduce increasingly draconian legislation that will be increasingly abusive of human rights. I share the previous interlocutors' concerns about the terms of the legislation and the fact that the mere suspicion of a person's status as an irregular arrival would be enough to mandate detention.

I'm less concerned about release after somebody has been recognized as a refugee. My concern is that once you introduce mandatory detention, the prospect of processing times stretching out actually increases; it doesn't diminish.

One of my concerns about the legislation and about giving the power to an official to mandatorily detain somebody is the removal of judicial oversight of that process—the fact that somebody must be detained for one year and that judicial oversight will only occur every six months.

When we did this in Australia, we used very similar language. In fact, there appears to be quite a degree of legal borrowing happening in this space. One of the effects of this was that we ultimately saw a great number of legal permanent residents, and indeed even a citizen, being arrested and removed from the country without the oversight of the judiciary because our laws talked about mandatory detention. In fact, our laws talked about the “reasonable grounds to believe”, but even so, without judicial oversight of the process, people were wrongfully detained.

We are able to supply for you the financial costs that mandatory detention has brought for Australia. Over the years, the cost has grown exponentially. In the 2011-12 budget, we spent more than $700 million running our detention centres offshore, and our detention centres onshore cost us nearly $100 million. These are not small amounts of money, and they have grown exponentially over the years. You will find yourself spending huge amounts on building more and more detention centres as these come. The amounts we have paid out to people who were wrongfully detained because of the laws we put in place.... A report in recent years in 2011 suggested that the Australian government has paid out more than $16 million in compensation to asylum seekers and detainees who were wrongfully detained.

I would also invite you, however, to have a look at the social cost of these measures. We have found in Australia that mandatory detention has never deterred a single asylum seeker. Unfortunately, countries like ours tend to attract genuine asylum seekers. I know that there is also a concern with people who are not launching genuine claims, but in fact in world terms, our countries attract people who have genuine refugee claims. The result is that when you introduce punitive laws like these, they can affect the whole fabric of society.

I will just say in closing that the measures to introduce temporary protection visas are also extremely regressive. In Australia, not only did they not deter anybody; they in fact changed the composition of the asylum-seeker population coming to Australia, because instead of being able to bring families in using legal methods, people were forced to use irregular migration to get their families to join them. For that reason, we saw within a very short space of time an enormous increase in the number of unaccompanied children and women who were coming out as irregular maritime arrivals.

These are very complex matters. We live in western democracies that are attractive to people who have been persecuted around the world. We also live in democracies that have been built on systems of justice and equality that should be the envy of those of us who are citizens of this society. To introduce laws that threaten that fabric, that encourage these events is very regressive.

5:40 p.m.

Conservative

David Tilson Dufferin—Caledon, ON

Thank you, Professor Crock. Thank you very much.

Ms. Sims has some questions.

5:40 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Thank you very much for giving up your time to share your experiences with us.

I have a number of questions.

We have some really serious concerns about how bad this bill is for families, and in particular for children. In your research and in your presentation you have talked about a child-focused approach to children arriving as refugees. Can you talk about what you mean by “child-centred” and why such an approach is important when it comes to refugees?

5:40 p.m.

Prof. Mary Crock

Children are affected by these laws at a number of different levels. In my opening statement I mentioned very briefly that if you introduce temporary protection visas, the usual modalities for the movement of asylum seekers are altered.

By this I mean that the usual pattern of refugee migration is that the fathers or the oldest sons are often the ones who take to the air or sea fleeing persecution from their country. They do that first of all because they tend to be targeted first, and secondly because very often they want to go to find a safe haven for their family in a third country.

If they are able to do that by themselves and then bring their families out by lawful means—through family reunification—then the process is one that benefits the children and families directly. If you introduce temporary protection visas, what happens is that the adult males or oldest sons continue to be the ones who leave first, but they are not able to be joined by their families. It forces those people to put their children and their wives under immediate threat of irregular migration—particularly irregular maritime migration, which is probably the most perilous way to get into a country. That's at the most basic, gross level.

We found in Australia that within about six to eight weeks, the number of children on board the irregular maritime vessels jumped from 5% to as much as 60% or 70%. It was an absolute disaster. You then end up with children who, in our case, were placed in detention. Up until 2005, our mandatory detention laws didn't make a distinction between men, women, and children in terms of age at all.

I can see that your laws will. Even so, if you are dealing with very young children who have been put into that situation and you make no provision for allowing them to properly be cared for by their parents, then you are just creating enormous problems for the country in terms of the care of these kids—who will be put on the boats. I can promise you that it will happen; there's no doubt about that.

When you introduce punitive laws like these, they also place enormous pressures on the people who are having to do the asylum determinations.

I'm known as a refugee advocate, but I have worked for many years. I set up one of the first organizations in Australia to actually help people with their asylum claims and their immigration cases more generally. I have worked in practice, I remain a practitioner, and I still drag my students into the practice of.... I'm conscious of how difficult it is for the decision-makers, for the officers who have to do this work.

Let me say that laws like these have an enormous impact at every level. They impact upon the people who have to detain these individuals, who are faced with the daily stresses that this type of mandatory detention places on people. They do nothing to make processing fairer or faster, in my view.

5:45 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Thank you very much.

I just want a comment from you on 16-year-olds. Under the government's bill, Bill C-31,16-year-olds would fall into the category of children. Could you clarify for the committee whether you believe a child-centred approach should apply to 16-year-olds, and why?

5:45 p.m.

Prof. Mary Crock

There are two points.

One is that, really, there's a lot of evidence to the effect that 16-year-olds are still very vulnerable. I think 18-year-olds can still be very vulnerable. In the cognitive development of children and the social development of children, those are very critical years. I think that's a problem in itself.

The other problem you're going to face here, though, is that when you start putting in age units like that, you're going to be faced with more and more issues relating to the assessment of age in individuals. Sadly, Australia has really exhibited some of the world's worst practices in age determinations. But you're really creating enormous problems for your decision-makers in having to make a call.

People do not arrive with their birth certificates. Some countries, such as Afghanistan, don't even mark ages the same way we do, so age determination becomes a very imprecise science. You will end up with children aged 14 being assessed as being 16, 18, or 17. Once you put down age units at 16 like that, you're introducing all sorts of problems. Again, I think it's a very regressive measure.

5:50 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Thank you.

Based on the research you have done, what are the lessons that you feel Canada could learn from your experience?

5:50 p.m.

Prof. Mary Crock

Well, our experience is quite well documented in the reports I did with Jackie Bhabha at Harvard University. If you have a look at the four reports we did entitled “Seeking Asylum Alone”, a study of unaccompanied separated children seeking asylum in Australia, the U.S., and the United Kingdom, those reports will give you a spectrum of three countries that took quite different approaches.

We found that the country that was probably doing it best was the United Kingdom, and at that time Australia was the worst. We have lifted our game somewhat, but I think the message I have for you is that, look, these measures do not deter. They cost a fortune. Financially they cost a fortune and socially they cost a fortune, because this foments dissent amongst people.

The trouble is, you see, that what happens with laws like this is that the general population sees the laws as targeting people of difference within society, so that's anyone who is of a different colour, who dresses differently, or who is of a different religion, and they can't tell, once you're out of detention, if you're—

5:50 p.m.

Conservative

The Chair David Tilson

We have to move on, Professor Crock.

5:50 p.m.

Prof. Mary Crock

—an asylum seeker or not.

Thank you.

5:50 p.m.

Conservative

The Chair David Tilson

Thank you.

Mr. Leung, you have the floor.

May 2nd, 2012 / 5:50 p.m.

Conservative

Chungsen Leung Willowdale, ON

Thank you, Mr. Chair.

Mrs. Crock, I am taking the approach that we're looking at this as parliamentarians. As parliamentarians, we're here to look at the interests of Canadians first. Canada, like Australia, has a fairly generous immigration policy. It is also our task to make sure we spend the taxes of Canadians in the most expeditious way.

Now, within that immigration framework, if we detect people coming in and abusing our system, we need to have laws to deter this. If it's an economic migrant, then yes, they can certainly apply through our regular system, but if they're irregular arrivals and they're abusing the system, we need to take adequate measures to prevent this from causing disruptions in our society.

From that, we need to medically pre-screen some of these people. We need to establish their identity. We need to do all of this. That is, I think, one of the primary reasons why we need a certain amount of detention period—in order to ascertain that.

I've worked with refugee camps in Thailand, in Taiwan, and also in Hong Kong. In every place I've seen, they do use detention. I believe in Australia they do, too, so perhaps you can elaborate for me on what your suggestion would be if you don't use this method. Or how would you document these people before you let them into your country?

5:50 p.m.

Prof. Mary Crock

First of all, we're talking here about irregular arrivals. As I understand it, this legislation targets asylum seekers or people arriving in larger numbers.

There are a lot of issues that you've brought up in your question or comments to me. First and foremost is the right of Canada to regulate migration. I don't think anybody would disagree with you on that front. The complexity arises because the laws you are proposing go far beyond measures that would just protect Canada's interests, in terms of working out who is coming into the country. There is detaining people for the purpose of identification, seeing whether they represent a health threat to the country, and there are laws that mandate detention for one year.

One can operate in the national interest, but clearly the other one moves from the national interest to punishing people in the effort to deter irregular arrivals. There is no law that prevents a country from looking after its own national interest in terms of protecting itself against people who might present a threat to security or to health. It's quite different, however, when you start introducing laws that are not based on any reason but are just blanket, mandatory laws that have no reason for them that relate to national interest.

The problem for me is that there is an assumption being made that if you copy the laws Australia has been using for a number of years, it will somehow have the effect of deterring irregular arrivals. What I'd like to put to you is that Australia's experience does not bear that out at all. Mandatory detention has never deterred anybody, and it's not about to here. What it will do, if you're interested in knowing what the cost to the taxpayer in Canada is going to be, is put your bill through the roof. The cost of building detention centres.... We've spent half a billion dollars building a detention centre on Christmas Island. The cost of construction alone is phenomenal, when you start looking at this. I advise you to look at that.

The social costs, however, that I've been trying to explain are also quite enormous.