Bill C-291 (Historical)

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

Immigration and Refugee Protection Act

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

moved that the bill be read the third time and passed.

Madam Speaker, I am pleased to be here to debate my bill, Bill C-291, now at third reading.

I would like to start by pointing out that we have discussed this bill very intensely in committee. I know that the governing party did not support the bill, but I must nevertheless point out that all of these debates were respectful. Other subjects create more acrimony and tension in the House. During the vote at report stage just a few minutes ago, we saw an example of how the process was not abused as a diversionary tactic. I give the Conservatives credit.

This bill is very simple. It would establish the refugee appeal division provided for in the Immigration and Refugee Protection Act passed by this Parliament in 2002. Before this reform, two board members would examine the refugee claims together, and if one of the two members accepted the claim, refugee status was granted to the individual.

At the time, the government determined that it would be too costly, particularly given that in 95% of cases, the board members' decisions were the same. That was not surprising, considering that they sat side by side. They had plenty of opportunity to discuss the case and to influence one another. The government said that having two board members was too expensive and pointless, so it decided to cut down to one. To prevent arbitrary rulings, the government decided to set up an appeal division to allow people to appeal a number of possible errors. After consulting the population, immigration lawyers, experts in the protection of refugee rights and all kinds of other groups, Parliament concluded that this was a good compromise. It cut the number of board members by half in exchange for an appeal division.

The problem is that the Liberal government of the day and the Conservative government that followed never implemented that part of the legislation. Those listening at home may well wonder how the government can get away with ignoring the law.

When the House passes a law, it presumes that the government is acting in good faith and intends to respect the will of Parliament. When the time comes to implement legislation, the House generally gives the government plenty of flexibility in terms of when to implement particular provisions. Laws usually contain subsections stating that sections x, y and z are to be implemented when the government issues the order. That way, the government does not have to say whether it needs six months, eight months, 12 months or 14 months to implement a particular provision—in this case, the refugee appeal division. Parliament believes that the government will eventually implement the provisions. In this particular case, that should be all the more true because the government had a majority at the time. So members have every reason to wonder why a provision was included in the legislation if the government had no intention of acting on it.

Unfortunately, that is what happened. This happens rarely—never, as far as I know, until now. This provision has been languishing for eight years. It is part of the legislation, but it is meaningless because the government has refused to issue the necessary order.

The bill before us amends the original provision that gave the government the authority to determine when the division would be created and replaces it with a fixed deadline of one year after it receives royal assent.

I mention this because basically I think, with this bill, before even touching on the content and wisdom of the provision itself, we must see this as a matter of respecting the will of Parliament, and by extension, democracy.

Every time there is an election, millions of voters take the time to go to the polling stations and vote to elect the 308 members who sit in this House so we may pass legislation, and keep an eye on the government and keep it in check. When a government—or two in this case, since it was first the Liberals and then the Conservatives—shows complete scorn for the will of this House for eight years and gets away with it—and we are not talking here about a motion that will have no impact, but rather a duly passed law that was given royal assent—when Parliament is ignored by the government for eight years, I think the minimum act of respect that we owe each other as members of this House is to send a message to the government, regardless of its political stripe, to the effect that when this House and the Senate pass a law, it becomes law and the government must implement it. There is an important aspect to this bill. I think that if it were not passed, that would send a very odd message to the government. We would basically be telling it that it can do whatever it wants with the laws we pass here.

That being said, let us look at the crux of the issue. Why is the refugee appeal division necessary? I would say that the answer has to do with natural justice. Regardless of their political systems, western nations and modern countries have relatively sophisticated justice systems that are designed to prevent arbitrariness and abuses. These government legal systems came out of the middle ages. They are not a recent invention, but began when it was decided that a single individual would no longer have the power of life and death over people and that rules and mechanisms to enforce them would be created. That is what really came out of the middle ages. All around the world and throughout our own legal system, there is the fundamental principle of the chance to appeal, the chance to say that there was clearly an error in a decision and to request that it be reviewed by a second independent party. The appeal process exists everywhere. In Canada, there is just one time when there is no chance to appeal a decision on its merits, and that is when it comes to determining refugee status.

Yet refugee determination decisions are far more serious than decisions handed down by many other tribunals where there are opportunities to appeal. You can have a fight with your neighbour over a fence, and if you are not happy with the decision, in many cases you will have the chance to appeal.

Here, we are talking about decisions that, in some cases, could mean removing someone to a country where he or she will be tortured or even killed, yet there is no chance to appeal. A decision will be made based on the judgment of a single person. It is simply irresponsible.

Human nature being what it is, every person who acts as a board member can make mistakes. In addition, some board members have serious competency problems. Some accept nearly all the claims they hear, while others reject nearly all of them.

I have a case in my riding where a person's claim was rejected by a board member, Laurier Thibault, who at the time was rejecting 98% of the claims he heard.

If a person appeared before a judge—which could happen to anyone here—and before entering the court room they were told that the judge hearing the case convicts 98% of people who appear before him, the person would say this is a parody of justice and they would be right.

Such things can continue to happen because the board's rulings are currently not subject to any control. They can do what they want and there will never be an appeal or any way to know whether their rulings are appropriate. If a judge's rulings in regular court were systematically overturned on appeal, at some point the chief justice would tell him there is a problem.

No such thing exists when it comes to determining refugee status, with the perverse effect that immigration lawyers cannot answer their clients when they ask what their chances are of being accepted. The lawyers are forced to tell their client that it is like a lottery: if they appear before a generous board member, they will be accepted, but if they are heard by a racist board member, they will be turned down.

As a result, people end up making an application when they otherwise would not. If there were a system equipped with an appeal mechanism and real case law, people would know that even if they are heard by a rather generous board member who grants them refugee status, the minister could appeal that decision in order to avoid setting a precedent. After a few months, there would be clear case law: we would know who will be accepted and who will not. The same rules would apply to everyone and this would greatly decrease the number of not so legitimate applications made at the beginning of the process.

Mr. Speaker, my colleague the parliamentary secretary will probably tell us in a few minutes that there are many avenues of appeal. I must admit that there are avenues to appeal the process but there can be no appeal of the merits of a case. Every lawyer who appeared before the committee told us so. Many lawyers, disappointed with the decision on the merits of a decision, use the procedures of the Federal Court to overturn the decision when they cannot appeal the merits of a decision.

The Federal Court itself ruled that it did not have jurisdiction to rule on the merits of a decision. For example, if a board member says that he finds the statements of an applicant to be false and rejects his application, the Federal Court cannot overturn the decision. In some cases, the judge has even said that, had he been the commissioner, he would probably have made a different decision, but that he can only rule on the process and that it was followed correctly.

There is also the pre-removal risk assessment, the PRRA. Once again, it is not a true appeal. It only makes it possible, and in very rare cases, to avoid removal when, for example, the political situation has changed in the country of origin or when new evidence is submitted. However, evidence submitted in the initial hearing to the commissioner cannot be submitted once again, and therefore it is impossible to appeal on the merit of the decision.

Everyone agrees that, at present, those applying for refugee status must wait too long. We need a more efficient system, and case law and rules that are clear for everyone. There would be no point in filing an application unless you met the criteria because you would know in advance what the decision would be. There would no longer be a board member lottery. It would shorten the process and decrease the number of people who make pointless or unfounded applications. In addition, it would be less costly and would allow lawful applicants to obtain a decision more quickly.

For all these reasons, and out of respect for our democracy and this Parliament, I encourage all members to support this bill.

The House proceeded to the consideration of Bill C-291, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), as reported (without amendment) from the committee.

The House proceeded to the consideration of Bill C-291, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), as reported (without amendment) from the committee.

Visas for Mexican Nationals

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Mr. Speaker, this week a CBC report showed how the sudden decision by the Minister of Immigration to require visas for Mexicans at the height of the tourist season damaged Canada's reputation in addition to being detrimental to the Quebec tourist industry. The minister's sudden and amateurish actions caused considerable harm to Canada-Mexico relations.

The large number of illegitimate refugee claimants is due to the fact that the decisions of IRB members are inconsistent. Some members accept almost every claim; others, virtually none. It is like a lottery. The only way to put an end to this chaos is to establish the appeal division, as provided for in the legislation, to ensure consistency in decision-making.

Unfortunately, the Liberal and Conservative governments have always refused to do so. It is high time that Parliament adopt Bill C-291 in order to uphold democracy.

Citizenship and Immigration

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 12th report of the Standing Committee on Citizenship and Immigration. Your committee has considered Bill C-291, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171) and reports it without amendment.

[The Chair, Conservative, David Tilson]

I'm going to call clause 1 of Bill C-291.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Thank you.

Mr. Chair, I was wondering if we could ask the witness to confine his remarks to Bill C-291 and not expand beyond that as to the determination of refugees. We're studying the appeal mechanism, and I think the committee.... I certainly would like to hear more about the appeal mechanism versus how we determine what is a refugee and what is not a refugee.

[The Chair, Conservative, David Tilson]

We're going to call this meeting to order, ladies and gentlemen.

This is the Standing Committee on Citizenship and Immigration, meeting number 28, Tuesday, October 20, 2009. Pursuant to the order of reference of Wednesday, April 22, 2009, we are considering Bill C-291, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171).

We have before us this morning two witnesses: Mr. Francisco Rico, from the FCJ Refugee Centre; and Martin Collacott, a former Canadian ambassador in Asia and the Middle East.

Good morning to you, gentlemen.

We are going to give each of you 10 minutes to address the committee, and then we will have questions from members of the committee.

Mr. Rico, you're first on the list, so we'll let you go first.

[Janet Dench, Executive Director, Canadian Council for Refugees]

Thank you very much.

Thank you for the invitation to speak to you this morning about Bill C-291, compelling implementation of the refugee appeal division.

The Canadian Council for Refugees urges the Committee to complete its study very quickly, given that the bill has already been studied by both the House and the Senate in the previous Parliament. It is very important that the bill be passed quickly, for three reasons.

The first is that the bill is important. Providing refugee claimants with the right to appeal may save lives. Wrong decisions at the refugee hearing that go uncorrected can lead to refugees being returned to persecution, torture and even death. Contrary to much popular opinion, there is currently no appeal on the merits for refugee claimants. The limited recourses that are available are incapable of correcting many errors in refugee determination.

The second reason is that the bill needs to be passed quickly. It is already more than six years since the Immigration and Refugee Protection Act came into effect without implementing the right of appeal for refugees foreseen by the Act. As a result, for six years refugee claimants have been having their fate determined by a single decision maker in a system never approved by Parliament. Refugees have already waited too long for this injustice to be corrected.

The third reason is that the bill was very close to becoming law. All that was left was for the House of Commons to vote on the amendments made by the Senate. It should therefore be a straightforward matter for the House and Senate to pass the same text without further debate and delays.

As you discuss this bill and the broader question of possible changes to the refugee determination system, we would encourage you to bear in mind several points.

First, refugee protection is a matter of human rights. A refugee determination system must first and foremost ensure respect for the human rights of those who claim our protection. Of course, you have a responsibility to ensure that the system is working efficiently and that it is not hampered, for example, by large numbers of claims from people who do not need Canada's protection. But your primary concern should always be to ensure that the system is ensuring that no one who needs Canada's protection is sent back to persecution or torture. We are therefore concerned when there appears to be more time and energy given to worrying about unfounded claims than about claimants who are wrongly rejected and face return to persecution or torture because there is no appeal on the merits in the Canadian system.

Second, refugee determination is about offering protection to individual human beings who need it. The success of the refugee determination system must be judged on whether it recognizes those individuals who need protection. It is not about whether the overall acceptance rate is high or low. To an individual person who needs protection and who has been rejected, it is no help to say that the acceptance rate in Canada is high. We want to underline the dramatic implications of the lack of appeal on the lives of individuals.

I invite you to read the story of Juan Manuel in this document that was circulated, on page three in the sidebar. Juan Manuel made a refugee claim that was denied in Canada. Shortly after his return to Mexico, he was brutally attacked by the people he had originally fled. He was in intensive care for 12 days. He was lucky to survive. If bystanders hadn't intervened, he would have been killed.

In another case, the UN Committee Against Torture intervened to stop Canada deporting an individual to a risk of torture.

It was in December 2004. The Committee Against Torture found that Canada had failed Enrique Falcon Rios, a victim of torture. The decision also highlighted some problems with Canada's refugee determination system, notably the lack of any effective appeal or recourse for correcting errors in decisions by the Immigration and Refugee Board.

There is a third point we would encourage you to bear in mind. There is a lot of misunderstanding about the refugee system. Unfortunately, the refugee system, which is quite complex, is often misunderstood or misrepresented. As you review problems in the system and consider changes, we strongly recommend that you make sure you get really good information about the system. For example, people frequently suggest that delays are caused in the refugee system by humanitarian and compassionate applications, commonly called “H and C”. We were discussing this earlier. However, it does not seem to be widely understood that there is no stay of removal pending an H and C application. So it is not true that a person can delay their removal by simply making an H and C application.

Another example of a misunderstanding is the common assumption that the problem lies with legislation if it takes a long time to remove refused claimants. In fact, it is more often a problem of bureaucratic processes and priorities. Despite the growing backlog at the Immigration and Refugee Board, many Mexican claimants have been having their hearings very quickly, because their claimants have been given priority by the board. Yet there may have been no effort to remove them for many months or years, those whose claims were rejected, because they are not a priority with another arm of the government.

The CCR and its member agencies have a wealth of experience with the system. We can see what is working and what is not. We urge you to recommend to the minister that he consult with the NGOs serving refugees before drafting any legislation.

There is a fourth and final point that we urge you to consider.

Discussion of refugee issues needs to be respectful and well-informed. We have heard numerous serious inaccuracies in recent public comment on the Canadian refugee system, often apparently motivated by hostility to refugee claimants. This does not support reasoned discussion about the important policy issues. Refugees are among the most vulnerable people in society and are easy targets for attack, as non-citizens in a foreign country.

We encourage you, as you discuss these issues, to always keep in mind that we are talking about human beings who deserve our respect.

Thank you very much.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

I call the meeting to order. This is the second session. As we all know, the orders of the day are, pursuant to the order of reference of Wednesday, April 22, 2009, for study of Bill C-291, an act to amend the Immigration and Refugee Protection Act, coming into force of sections 110, 111, and 171.

The second panellists include, from the Canadian Council for Refugees, the executive director, Janet Dench. Welcome. As an individual we have a former ambassador and former executive director of the Canadian Immigration Service, Mr. James Bissett. Eventually we'll have Rivka Augenfeld, representative from the Table de concertation des organismes au service des personnes réfugiées et immigrantes.

We will begin with the Canadian Council for Refugees and executive director Ms. Janet Dench. Thank you very much for coming. You have approximately seven to ten minutes—closer to seven, please.

Thank you.

[Alice Wong, Conservative, Richmond, BC]

Thank you for the correction.

Bill C-291, which we are looking at right now, appears to go in an entirely different direction to some of the things you have warned against. How do you think this would affect the flood of bogus refugees and the difficulty in removing them? We have seen so many cases here. Please comment.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

I'd like to call to order meeting 27 of the Standing Committee on Citizenship and Immigration. According to the orders of the day, pursuant to the order of reference of April 22, 2009, we have Bill C-291, an act to amend the Immigration and Refugee Protection Act, on the coming into force of sections 110, 111, and 171.

Today we have the pleasure of having the following witnesses for our first session: Lorne Waldman, who, as everyone knows, is an immigration lawyer; Julie Taub, an immigration and refugee lawyer and a former member of the Immigration and Refugee Board of Canada; and Raoul Boulakia, who is also a lawyer.

Some of you have appeared here before, so you know how this works. You get a few minutes to do introductory comments. Thereafter, we will engage in a question and answer session.

We will begin with Mr. Waldman. Welcome.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Thank you very much, Mr. Chairman.

Mr. Minister, welcome once again. Thank you for your comments on your planning and priorities. I would also like to congratulate Mr. Yeates and Mr. Linklater on their appointments. It's a fun department, I understand, and there's a lot of work to do. I'm sure that as public servants you will excel, as do many public servants in this country.

I want to pick up on the points raised by the minister on the issue of the refugee system and its reforms. As you know, this is an area I've raised in question period and in discussions with you. I believe it is of vital importance to the integrity of Canada's immigration system, and I would very much like to see this package presented to the House as soon as possible.

One of the concerns I believe we share is that it takes far too long for the status of refugees to be determined. That has to change. By the same token, I also don't want the reform package to be slow getting in. That would not be a very good start if we're trying to speed things up. So I'd like you to elaborate on that point.

We're also dealing with Bill C-291, so I wonder if you have any advice on the issue of an appeals division, and whether or not your package includes an appeals division that would alleviate some of the concerns we share here in committee.

[Jason Kenney, Conservative, Minister of Citizenship]

Thank you, Chairman, for having me.

Dear colleagues, it's great to be back at committee. I'm joined by our new deputy minister, Neil Yeates, who's joined us from the Department of Indian and Northern Affairs Canada. He has gotten right into our big and complex files. I'm also joined by our new deputy minister of strategic programs and policy, Les Linklater, and our old DM for operations—I mean in the sense of veteran—the ADM, Claudette Deschênes, who we rely on for her expertise and for all of the operations around the world in our many offices.

When I appeared before the committee in June, Mr. Chairman, I explained how our action plan for faster immigration was paying off. Today I am pleased to inform the committee that we continue to make important progress. You may recall that in 2008 Canada accepted more than half a million newcomers, including permanent residents, temporary foreign workers, and international students. We also granted citizenship to more than 176,000 new Canadians. You may also recall that our backlog in the federal skilled worker category, which had reached more than 600,000, had dropped to roughly 515,000 by the end of last year. That was a significant drop of 15%.

Mr. Chairman, as of the end of August this year, this backlog has dropped even further to a little more than 432,000, a reduction of more than 30% since a year ago. We're committed to a strong immigration program that balances Canada's economic, humanitarian, and family reunification goals. We're planning to welcome between 240,000 and 265,000 new permanent residents this year. While many other countries have cut back immigration levels as a short-term response to the global economic downturn, we are actually maintaining very ambitious levels in response to our country's medium- to long-term economic needs and indeed our demographic challenges.

I'd like to update you on some of the things we've done, but it's always worth remembering that since coming to office, we've made some important progress. We're cutting in half the right of landing fee and tripling federal investment in settlement and integration services outside Quebec.

That has always been very well [Inaudible—Editor] in Quebec.

My department has also made progress on foreign credential recognition. Indeed as you know, the Prime Minister reached an accord with the premiers in that respect. I think we'll have exciting announcements to make later this fall in that regard.

Mr. Chairman, since becoming minister almost a year ago, I have also become increasingly concerned by the growing backlog in—and indeed the abuse of—our asylum system. Some people have suggested that the backlog of refugee claims, which now is an inventory of 60,000 claims pending at the IRB, is a result of unfilled Governor in Council appointments at the Immigration and Refugee Board.

As my colleagues here know, the GIC appointment process to the IRB has twice been modified since 1997. Every time there is a modification in the appointment process, there are delays in appointments as a natural result.

I should point out that I have personally made 51 of those appointments and 19 reappointments to IRB positions, and now the Board stands at more than 94% of its full complement of its Governor in Council members.

The current situation is far more complex than just the number of decision-makers at the IRB. Between 2006 and 2008, there was a 60% increase in the number of refugee claims filed in Canada. As I indicated, that growing backlog reached 61,000 this summer. This government inherited about one-third of that backlog, about 20,000 cases, when we came to office in 2006. Another one-third, about another 20,000 cases, were the result of delayed appointments as a result of the transition to the new merit-based appointment system, which I think is working pretty well.

But at least one-third of that 60,000-case backlog before the IRB is the result of the growth of claims above and beyond the capacity of the IRB to process. Even at full capacity, full appointments, full budget, the IRB can only finalize about 25,000 asylum decisions a year. Last year we received 37,000 claims above and beyond the IRB's maximum capacity of 12,000 claims. Clearly at that rate the backlog will continue to grow, and so will wait times.

The government's decision this past summer to require visas for all citizens of Mexico and the Czech Republic entering Canada was based on hard facts and demonstrated the need for action. It was not an easy decision, but in my judgment it was in our national interest. For example, almost one in four of the asylum claims in Canada last year came from Mexico, yet the IRB determined that only about 11% of those claims were well founded. That means that a growing number of asylum claimants are not in need of Canada's protection, based on the numbers we've seen.

The acceptance rate of claims at the IRB currently is in the range of 44%, yet an unsuccessful claimant who is determined to game our system can stay in Canada for several years with a work permit and our social assistance. That fundamentally undermines the fairness of our immigration system. For a legal immigrant waiting to come from Mexico, for instance, through the federal skilled worker program, it's fundamentally unfair to have to wait four to five years and see someone simply jump off a plane, make an asylum claim, and get a work permit even though the claim is not well founded.

Since we began requiring visitors from Mexico and the Czech Republic to obtain a visa, the number of refugee claims has slowed to a trickle. In the two and a half months since the visa requirement took effect, there have been only 17 refugee claims at ports of entry from Czech nationals compared to 831 claims in the same period leading up to the visa imposition. Similarly, in that period, claims at ports of entry from Mexican nationals have fallen significantly to 35, down from 1,287 in the two and a half months before the announcement. Prior to the imposition of visas, Mexico and Czech refugee claims accounted for almost 50% of the total number of claims made at ports of entry. Since we imposed the visas, only 6% of claims were made by nationals of those countries. We've managed to stem the tide a bit with visas on Mexico and the Czech Republic. But I think we can all agree that visas are a blunt instrument and not the ideal solution. I think we need to reform the asylum system.

Since we began requiring visitors to first obtain a visa for Mexico and the Czech Republic, the number of claims has slowed to a trickle. I won't review in English what I've just said in French, except to say that obviously visa imposition is a last resort. It's not something we prefer to rely upon, but to protect the integrity of our immigration system we need to look at reforms to the refugee asylum system.

The committee has Bill C-291 before it, which I acknowledge is inspired by very good sentiment and a desire to ensure a full and fair appeal for refugees. And as the committee knows, the government supports, in principle, the idea of the implementation of a refugee appeal division.

However, that applies only in the context of a more efficient system. We can't add another appeal level to a system that in some instances takes years to turn a false refugee claimant away at the border.

To summarize, I look forward later this fall to bringing recommendations to the committee and the House on how we can streamline and improve our asylum system so it is more balanced--a system that will fully respect rights, due process, charter rights, and our international obligations to asylum claimants, but will also ensure that we protect the integrity of our immigration system and that it does not take years to remove false claimants who abuse Canada's generosity.

Mr. Chairman, I'm available to answer the questions of all members; my senior officials are as well. Thank you very much.

[Richard Fadden, Deputy Minister, Department of Citizenship and Immigration]

Mr. Chairman, yes we do have estimates for supplementary costs. We also have the agreement of cabinet. If Parliament passes Bill C-291, the means to obtain supplementary funds have been provided for.