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 refugees.

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

May 2nd, 2012 / 4 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Thank you very much, and thank you to all three of you for coming and taking the time to make your presentations.

Ms. Dahan, I know you're with Legal Aid Ontario, and I know the budgets are being cut or have been cut considerably.

Under this new refugee claim system, there is probably going to be a need for more legal representation, not only at the hearing before the Refugee Protection Division, but also before the Refugee Appeal Division.

How will Legal Aid Ontario address this problem of a decreasing budget and refugees' greater need for competent legal representation?

4 p.m.

Barrister and Solicitor, As an Individual

Carole Dahan

Thank you. That's a very good question, and it's a question legal aid is still struggling with.

I am here today speaking as an individual and not representing legal aid, but I can tell you the federal government has just announced that the funding to all legal aid plans across Canada will remain the same as last year's level, which was just over $11 million. We certainly expect from Legal Aid Ontario's perspective...Ontario receives 60% of all refugee claims in Canada, so we do both a merit screening as well as a financial screening.

Just to give you an illustration, to qualify financially for legal aid assistance, a single person has to earn $10,800 a year. If you earn $12,000 a year, so $1,000 a month, which would qualify as working poor, you do not qualify for our services.

For two people, I think it's $13,450, just under $13,500 for two people, if the husband and wife were to come and make a claim for refugee status. To be covered you would have to earn less than that, so that's the first financial eligibility.

The next hurdle to obtaining legal aid is that there's a merit screening. Legal aid has to decide whether it warrants the expenditure of public funds, because we also have obligations to Canadian taxpayers, and we have a responsibility to use the moneys we receive from the government effectively and efficiently. The first part of that is to do a merit screening.

Now, although we've been told our budget is going to remain the same, we're going to be asked to do more. As you alluded to, there's an additional layer in this process, the Refugee Appeal Division, which did not exist previously and which we have not been given any new funding for. It means that legal aid is going to have to do a lot more and be a lot more creative in the delivery of services using the same amount of money.

4 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Thank you very much.

If the basis of claim form has to be delivered to the Immigration and Refugee Board within 15 days, how will Legal Aid Ontario respond to that requirement?

4 p.m.

Barrister and Solicitor, As an Individual

Carole Dahan

As I was saying, not only do we do the financial eligibility and testing, but we also do the merit screening. Fifteen days for the basis of claim is going to make it extremely difficult for legal aid to do its job in ensuring that we are distributing moneys and funding those applicants who deserve it the most, and who, as I said, warrant the expenditure of public funds. Fifteen days is going to make it extremely difficult, if not impossible, for legal aid to continue delivering the services as it presently does. And it's 15 days not only from a legal aid perspective, but in terms of finding counsel even after legal aid has issued a certificate, which enables representation by the private bar. There are many, many hurdles that present themselves, in terms of finding a lawyer who's going to be available at the time, finding interpreters who can assist you.

So one of the recommendations is that the basis of claim form be extended to either the 28 days that claimants presently have in terms of filing their personal information forms, their PIFs, or be rounded out to 30 days.

Being here this morning and hearing Mr. Weston's comments about wanting to maintain the integrity of the system...nobody wants an average refugee claim taking 21 months. That's not good for my clients, it's not good for legal aid, it's not good for anyone. It's not good as Canadians. We want the system to be more fair and more efficient. We want it to be faster. I think echoing Mr. Goldman's comments this morning on throwing out the baby with the bathwater, I don't think an additional two weeks or 15 days to get the basis of claim form to be submitted is really going to delay the process that much. But in terms of making it workable and doable for all stakeholders and for all members who are involved in the process, it will make an enormous difference.

4:05 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Thank you. I'm sorry to rush you. We just have such a short time.

My next question is for Mr. Brouwer. What are some of the consequences of removing the checks and balances in place in the form of appeals for certain categories of refugees under this new bill?

4:05 p.m.

Barrister and Solicitor, As an Individual

Andrew Brouwer

Very practically speaking, we regularly see errors made by the refugee board, problems in representation by previous counsel or by consultants. When they come to us, people are at the very end of the line. They're detained and they're about to be removed, and it's the first time they're getting a lawyer to look over their case and determine that they're actually at risk.

The system we have right now allows at least some access to the Federal Court in certain circumstances, access to a pre-removal risk assessment to raise new evidence, and that's all. That's all we have right now. We also have, in certain circumstances, a humanitarian and compassionate remedy, although that's something that only works in a few kinds of cases, for example, when the best interests of the child are at stake.

Under Bill C-31, none of that is there. So by the time these people come to us, under Bill C-31, there will be little or nothing we can do for them, despite the fact that the evidence demonstrates that they're at risk when they go back.

4:05 p.m.

Conservative

The Chair David Tilson

Thank you.

We're almost at eight minutes. I'm sorry.

4:05 p.m.

NDP

Jinny Sims Newton—North Delta, BC

Thank you.

4:05 p.m.

Conservative

The Chair David Tilson

Mr. Lamoureux.

4:05 p.m.

Liberal

Kevin Lamoureux Winnipeg North, MB

Mr. Chair, I have many opinions, whether it's mandatory detentions, the number of days for preparation.

Ms. Dahan, you said you had some recommendations that you would like to give the committee. Go ahead and tell us. You have up to five minutes to give your recommendations.

4:05 p.m.

Barrister and Solicitor, As an Individual

Carole Dahan

I think we'll split the time because we have different recommendations.

In respect of the basis of claim form, I think the 15 days are untenable and unworkable. The same 15 days are also untenable and unworkable for the RAD.

Right now in the Federal Court we have 15 days to file the notice and then a further 30 days to perfect our record. Now we're going to be asked to do basically the same thing, which is obtain the CD of the hearing, somehow transcribe it, identify the errors, meet with the clients, and then prepare a record identifying the errors for the Refugee Appeal Division. All of that we're going to have to do within 15 days—on top of getting legal aid, having legal aid do a merit screening, and finding counsel. It's simply untenable. It's unworkable. As it stands today, it's simply window dressing. I don't think it's going to help refugees in any substantive way.

Looking at recommendations, one of the basic recommendations would be to extend the time. The Federal Court gives us 45 days to perfect the record. I think that's a reasonable amount of time. In respect of the hearing dates themselves, 30 days and 60 days, that's simply not enough time.

Mr. Goldman alluded to it in his testimony today. There was a time when the board was able to hold hearings within four to six months on a routine basis. It was only after the backlog that it went up to an average of 21 months. Our office routinely got called to schedule hearing dates within that timeframe, so we know it's doable. We know it can be done, and we know a fair and reliable system is achievable. It is an achievable goal. I don't think Bill C-31 gets us any further.

4:10 p.m.

Barrister and Solicitor, As an Individual

Andrew Brouwer

As to specific timelines, I don't know whether you said this, but we've talked about 28 days for the basis of claim, 120 days for access for the hearing, and 45 days, the same as we have currently in Federal Court, to perfect an appeal.

I think we both agree there needs to be, as there is now, a stay pending a leave application in the Federal Court. There should be no deportation of a failed refugee claimant until the Federal Court has looked at whether or not there's an arguable case. It's a difficult standard to meet, practically speaking, but they should at least have that shot. There should be no refugee denied access to the appeal division. If we're going to have an appeal, everyone should have access to the appeal, otherwise it's not an appeal.

It's our position that there has to be an opportunity to raise a new risk, or new evidence, or new circumstances prior to deportation. That means access to a PRRA prior to removal, after the RAD or the RPD has dismissed a claim. It may not be that there's a PRRA for everybody, but where someone can raise a prima facie risk, and he can show there is something that's changed, he should have that risk reviewed prior to deportation. Failure to do that, we believe, is contrary to the charter's section 7, and is contrary to both the convention against torture and the covenant on civil and political rights, not to mention the refugee convention.

We have many other things we could recommend about detention.

4:10 p.m.

Barrister and Solicitor, As an Individual

Carole Dahan

On detention, Mr. Opitz said this morning that we detain people until their identity is established. That is true today. That is true of the present system. Under Bill C-31, if the group is designated, then they would not be released, even after their identity is established. That is a very significant change.

One of the recommendations would be to eliminate, for designated groups, the one-year bar to having a detention review, and to preserve the opportunity to go before an adjudicator, a member of the immigration division, every 30 days.

We are concerned about identity and about security of Canadians, but once those thresholds have been met, then prospective immigrants should be given the opportunity to present themselves before the ID and have an opportunity to be released. So that would be another change.

4:10 p.m.

Conservative

The Chair David Tilson

Thank you.

Mr. Dykstra.

4:10 p.m.

Conservative

Rick Dykstra St. Catharines, ON

Thank you, Mr. Chair.

I want to ask Imre some more questions. I only have seven minutes. We each have seven minutes for the first round and five minutes for the next, so it really requires some cooperation between the two of us to really nail down our answers and our questions so that we can at least build a little bit of a base here. I'd be happy to meet with you after. Obviously this is a great introduction. I'd be happy to sit down with you further, but it's important that we sort of drill down.

I wanted to ask you fairly directly...the fact is that there are a number of other countries. If indeed any of the thousands of individual Hungarians who come to Canada and claim refugee status and then go back to Hungary were truly in need of refugee assistance, they could do so in one of the other countries that surround you or that are within the EU, as they're able to transfer without any difficulty to those other 34 countries. I wonder why they are not doing that. I suspect that—and what I want to hear from you—our process and our program with respect to our refugee act is actually so easy for folks in Hungary to take advantage of that it has led them to do what they're doing.