Bill C-280 (Historical)

An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171)

The purpose of this enactment is to ensure that sections 110, 111 and 171 of the Immigration and Refugee Protection Act come into force on the day on which this enactment receives royal assent.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Mr. Chair.

I just have some comments, and I want to thank the witnesses for their presentation.

Chair, I'm going to reject the allegations that the parliamentary secretary was making earlier, when he was beginning his filibuster, that somehow other members of this committee aren't interested in doing their appropriate job, or aren't doing a good job in terms of dealing with this issue and with this piece of legislation. I want to reject that categorically.

If the government, whether Liberal or Conservative, had done its job, and if the Conservatives had remained consistent with the position they took in the last Parliament in support of the RAD, if the government, whether Liberal or Conservative, had respected both the will of Parliament and the law that was passed, we wouldn't be here today discussing a bill to implement existing legislation. Those of us who have been advocating for a fair and just refugee process in Canada wouldn't have this frustration, and we wouldn't have to resort to this kind of legislation.

It is ridiculous, as Monsieur Gravel pointed out, that we should have to have a bill to implement existing legislation. That could have been dealt with easily along the way and long before now, with very positive results for the system.

I'm going to say to the representatives from the IRB that no one in this room wants to overwhelm the IRB. If anything, we want to be advocates for an effective IRB, and we have done that in our work in terms of our concern about the backlog and the lack of appointments. We will continue that work. It's not our intention to frustrate the excellent work of the IRB on very important and life-and-death questions for many people, but we are extremely frustrated with the refusal of the government to implement the provisions of IRPA.

The reality remains that if the government were concerned about creating backlogs, they could implement the RAD today. They could take those steps. They could announce their commitment to it. They could announce a timeline, and I'm sure all of us would be willing to consider that kind of timeline and that kind of process if there were a firm and hard commitment to doing that. They have chosen not to do that, and that's why we're in this position today.

The government could have short-circuited Bill C-280 the day before it was passed in the House. They could have short-circuited it--I'm sure--the day after it was passed in the House. If they wanted to take into consideration that a strong majority of the members of the current Parliament supported this legislation because they believe the RAD is an important piece of our refugee determination process, they had the ability to respond to that action by Parliament, and they chose not to. So that's twice that the government has chosen not to do that.

Though I understand the frustrations that implementation might cause and the stresses it might cause, it is within the government's ability to deal with that at any time.

I have one question. You say that it might take 12 months to establish the RAD. When I ask for a deadline, I usually put some extra time in it. If pressed, could it be shorter, or is that a minimum timeline?

[Bill Siksay, NDP, Burnaby—Douglas, BC]

You'll have to explain that to me. I understood that all Bill C-280 does is set a deadline for implementing existing sections of IRPA.

[Malcolm Brown]

It could, but I'm not sure it would apply to the provisions that are contained in the current Bill C-280. There's an assumption that there's a perfect match and the provisions of section 73, as they apply to IRPA, can be applied to Bill C-280. The advice I'm getting is that they can't be.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

If we contend that the coherent package is already in IRPA...you're not answering my question. Even though section 73 might not be mentioned in Bill C-280, if Bill C-280 were passed and went ahead, the government could also go ahead on section 73 at any time, because it's already been passed by Parliament and the mechanism to do that is there.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

You mentioned a concern about section 73 not being included, but there's nothing to prevent the government from implementing that immediately, should Bill C-280 pass, if the government was concerned about the absence of that.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

You mentioned your concern about section 73 not being included in this, but the passage of Bill C-280 doesn't preclude the government from taking action on section 73 if it chose to do so. Is that correct?

[Malcolm Brown]

Frankly, that's not been an issue. We've been focusing on the implications of Bill C-280. You're going to hear from the IRB later today. They may be unhappy with me for saying this, but I think really it's an important question for the IRB in terms of the implications it would have for them. I wouldn't want to trespass on what is, I think, largely their question to answer. It's certainly an issue that if the committee so instructs, the department can look at the questions of the implications of going back to decision-makers. But I think the government and previous Parliaments made a decision about the merits of a single decision-maker.

[Malcolm Brown]

You're really asking me two questions, and I'll try to answer both.

In terms of the challenges, yes, of course there are challenges in running any system. What we've tried to identify today are specific challenges that I think are unique, in terms of our having been asked about the specific implications of Bill C-280.

There is a responsibility upon officials to identify what those are. They are significant and, I would argue, they are not simply business-as-usual ones in operating big systems. They're complex.

As I underlined in my statement, and I won't repeat it, there are very significant implications if the bill is passed as it currently stands, in terms of the absence of transition provisions and those sorts of things.

On your second question, about the “deal”, to paraphrase what you've described, there is no question that IRPA contained the provisions and that RAD was not implemented. I'm not sure it's a question of the history of it; it's the question of the implications of the decision around implementing the RAD. At the time, there were implications in terms of backlogs, and there was a decision made.

I think as well, our assessment is that the system we have now is working quite well. As for the concerns some people may have had at the time around a single decision-maker and whether their system was robust enough and had sufficient protections in place, we think adding a new measure of appeal wouldn't significantly change things and would in fact only result in further delay and more money.

Our view is that the circumstances of how IRPA was negotiated at the time of the bill is an historical point. As an official, I have to deal with the consequences of the legislation before us, and a debate, frankly, about what was or wasn't agreed to at the time is really outside my pay grade, if I can put it that way.

[Malcolm Brown]

Thank you, Mr. Chairman.

I would like to thank the committee for having invited departmental officials from Citizenship and Immigration to speak to you on the issue you are studying, that is to say Bill C-280, an Act to amend the Immigration and Refugee Protection Act.

As you stated, Mr. Chairman, I am accompanied today by Ms. Micheline Aucoin, Director General, Refugees Branch, and by Mr. Eric Stevens from the department's Legal Services Branch.

The committee is aware of the subjects of concern to the government as far as Bill C-280 is concerned. The committee also knows that the government opposes the bill. We are here to answer procedural questions, for example concerning the necessary preparations for the implementation of a schedule, and questions related to the transition.

At Citizenship and Immigration Canada, we are very proud of our Canadian refugee determination system. It is often described as being one of the best in the world, including by the United Nations High Commissioner for Refugees. There is no doubt that Canada respects its international commitments and the requirements of the Canadian Charter of Rights and Freedoms, and that it even goes beyond that. Canadians can be proud of their humanitarian tradition.

Let me begin by drawing your attention to the fact sheet entitled “Refugee Appeal Division” that the department tabled at this committee in December of last year. In that document, we discussed the many opportunities that refugee claimants currently have to show why they should not be removed from Canada.

First, they have access to the refugee protection division of the Immigration and Refugee Board, where independent, well-trained, well-informed decision-makers hear the claimants' stories and review the information put forward to support that story.

Second, claimants have access to the pre-removal risk assessment, where they can put forward any new information that has not been considered by the IRB. Well-trained, well-informed public servants ensure that individuals are not returned for persecution, torture, or death.

Third, failed refugee claimants can apply to stay in Canada for humanitarian and compassionate reasons, including reasons of risk. Refugee claimants can and do make such applications, and many are accepted. About half of applicants for permanent residence on humanitarian and compassionate grounds—H and C, for brevity—are failed refugee claimants. The general H and C acceptance rate is 50%.

Fourth, refused refugee claimants can apply for a judicial review of that decision. The Federal Court review involves a full paper review of the IRB decision on grounds of fact and law, much like the refugee appeal division as proposed in Bill C-280.

The Federal Court can send and has sent cases back to the IRB based on patently unreasonable errors in findings of fact in a range of cases, including on issues relating to the claimant's credibility, assessing medical evidence, gender persecution claims, as well as the availability of police protection and country conditions.

I would like now to turn to some of the technical issues that are raised by Bill C-280.

The first issue has already been raised by Jean-Guy Fleury, the former chair of the IRB, when he appeared before this committee in December 2004. He advised that the board would require approximately one year to establish a fully operational refugee appeal division. I believe this lead time to be optimistic.

While the IRB is here to testify later this morning, there are a number of issues worth identifying. Board members with a different competency in hearing appeals than is currently the case would need to be assigned to the RAD, or appointed. Finding members and training them will take time. As well, a new set of rules establishing the procedures and conduct of a new division would need to be created. The IRB would also need to locate office space, set up systems for applications to be made, and establish case management technologies to implement the RAD. Resources would need to be identified even to begin such a process.

The second group of issues relate to the lack of transitional provisions in Bill C-280, which raises a number of questions. Who would be eligible for this new appeal? Would it apply to old cases, since the Immigration and Refugee Protection Act came into force in 2002, or only to new ones? What would be the rule for cases currently before the Federal Court? Who would hear cases sent back by the court: the refugee protection division or the refugee appeal division? What are the risks of saddling the new appeal division with a large backlog, which would cause further delays? These are issues that could have serious consequences, if Bill C-280 is enacted into law.

In the fact sheet the department tabled in December, we indicated that the addition of the refugee appeal division would add at least another five months to the already long refugee process. This is based on the assumption that the RAD would be given a fresh start without a backlog on day one and that it would be implemented with a full set of trained decision-makers already in place. Should this not be the case, these delays could stretch to many more months.

I would also point out that among the unproclaimed provisions of IRPA is a section, section 73, that ensures that the government could appeal any decisions of the refugee appeal division. This section does not form part of Bill C-280. Just as failed claimants have access to the Federal Court, so should the Minister of Immigration.

Thank you for your time listening to me. We welcome your questions.

Thank you, Mr. Chairman.

[The Chair, Conservative, Norman Doyle]

I've been told in no uncertain terms by a member of the committee, “Let's get moving”, so I guess we'll have to get moving.

I want to welcome all of you here today to our meeting and our consideration of Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171).

I want to welcome here today, from the Department of Citizenship and Immigration, Mr. Malcolm Brown, assistant deputy minister, strategic and program policy; Micheline Aucoin, director general, refugees branch; and Mr. Eric Stevens, legal counsel, legal services. Thank you for your presence here today to help us out as we consider Bill C-280.

I think you are well aware of the drill. I think you have opening remarks, so I'll go to Mr. Brown, the ADM, for opening remarks. Do you all have opening statements?

Immigration and Refugee Protection Act

[Rahim Jaffer, Conservative, Edmonton Strathcona, AB]

Mr. Speaker, today in committee I presented a motion to invite three former Liberal ministers of immigration to come to explain why they agreed with our government and could not support Bill C-280. Unfortunately, the opposition voted it down.

It is shameful that the Liberal leader is not only refusing to consult with his party's foremost experts on immigration, but worse yet, he is attempting to silence the members for Eglinton—Lawrence, Bourassa and York West, who have every right to be heard.

To quote from the Liberals former immigration minister and member for York West, bringing the Refugee Appeal Division at this time would:

—simply add more roadblocks and more time to the system, which... would prevent us from helping the very same people we want to help, people who come here genuinely seeking a safe place.

The Liberal leader and caucus should do the right thing. They should listen to their own experts on immigration, reverse their position and vote against Bill C-280.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

I'm going through it for a minute. I have a point I want to make.

I notice that Bill C-280 is set for Tuesday of next week, with respect to evidence from departmental officials.

[The Chair, Conservative, Norman Doyle]

Order, please.

The subcommittee on agenda and procedure met a couple of days ago. We agreed on the following report, the sixth report, and to place it before you for your consideration.

On Tuesday, March 27, we would adopt the draft report on the study on detention centres and security certificates. We would then go into Bill C-280, which you have before you, and receive testimony from departmental officials on Bill C-280. We would move to clause-by-clause on Bill C-280 on Thursday, March 29.

On Monday, April 16, we'll have the draft report on the loss of Canadian citizenship.

On Tuesday, April 17, and Thursday, April 19, it will be immigration issues and the IRB appointment process. We'll hear testimony from Jean-Guy Fleury, the former chair of the IRB.

I won't go through it all. You can go through it to see that this is what we're recommending and what we agreed to at the subcommittee meeting.

On Monday, Tuesday, and Thursday, we'll again have the draft report on refugee issues, and the Minister of Citizenship and Immigration will be invited to present on the main estimates.

Are there any comments on the report?

Ms. Faille.

The House resumed from March 2 consideration of the motion that Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), be read the second time and referred to a committee.

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, as I close out the debate, I will not talk about Bill C-280. Nor will I talk about the hundreds and thousands of refugees who, in the absence of a refugee appeal division, will be denied full Canadian citizenship and will be sent back where they came from.

I will not talk about them because today, after listening to the debate all day, I realized that this government is so mean-spirited that it is using all kinds of people to deny other people their rights. It is using women to deny women their rights; farmers to deny farmers their rights; people born elsewhere to deny the rights of refugees; and francophones to deny the rights of francophones.

It has been going on about the previous government ad nauseam, saying it was they who did nothing. Now this government has been in power for over a year. It made its promises over a year ago. When the Conservatives were in opposition, they said that there would be a refugee appeal division, but now they want nothing to do with it.

This is not right. The Conservative members from Quebec, who spend their time denying people their rights and denigrating other members from Quebec, have done nothing as part of the government. They have done nothing for their ridings, nothing for their citizens, nothing for Quebec and nothing for Quebeckers.

Next week, when we vote on this, will they decide to do nothing for refugees? I hope that all Canadians and all Quebeckers with immigrant ancestors will remember this.

We have been asking for this appeal division for years. The UN has even said a number of times that it is incredible that it still has not been implemented.

This is not just a whim or a passing fancy the Bloc Québécois came up with for political gain; we are talking about lives, people, women and children who are living in churches today, who do not even have the opportunity to go out in the storm because they cannot even leave their home in a church, where they have been shut in for more than a year in some cases.

This is not right. I wonder what the government is doing. We are still waiting for rights to be reinstated and for fairness and justice to be restored. We are not talking about billions of dollars, we are not even talking about hundreds of millions of dollars.

The hon. member from the government side spoke earlier. The government interferes in every provincial jurisdiction when it suits its own interests. However, when it does not suit the government, it talks about the millions of dollars. But it wants to invest those millions of dollars in fighting cancer or Alzheimer's, wherever its own interests are served.

It is a matter of political will to restore fairness and justice for people who have the right to be heard, listened to and validated in their quest for freedom.