Bill C-291 (Historical)

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

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

Thank you, Mr. Chairman.

During the last Parliament, Bill C-280, a bill to implement the Refugee Appeal Division, was adopted in the House at every stage, as well as in the Senate. However, it died on the Order Paper before receiving Royal Assent.

In this Parliament, Bill C-291 also aims to implement the Refugee Appeal Division. It has been adopted and is moving forward.

I know that the Conservatives are against the implementation of the Refugee Appeal Division, as it was set out in the legislation of 2002, but has your department nevertheless set aside money, or created mechanisms, in case Parliament decides to adopt this bill?

Liberal Party of Canada

[Pascal-Pierre Paillé, Bloc, Louis-Hébert, QC]

Mr. Speaker, this House has twice supported implementing a refugee appeal division. The first time, Bill C-280, introduced by the Bloc Québécois, went through all the stages in the House and the Senate, but died when this government made an early election call. Reintroduced barely a month ago, Bill C-291, sponsored by my colleague from Jeanne-Le Ber, once again received the support of the House.

Yet even though they supported Bill C-291 during the vote at second reading, the Liberals are now working with the Conservatives to block the bill in committee. The Liberals claim to stand up for refugees, but in fact, they are in bed with the Conservatives.

It is pathetic that the Liberals, who claim to support Bill C-291, should be playing the government's game.

Clearly, the Liberal leader's new strategy is to talk out of both sides of his mouth in order to fool the public, especially refugees, whose status is precarious.

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

Thank you, Mr. Chairman.

This is the motion I introduced:

That, notwithstanding the referral motion adopted Thursday, May 7, the committee proceed immediately and without further delay with the clause-by-clause consideration of Bill C-291 and that this clause-by-clause consideration be completed before the committee undertakes any other business.

When we met on Tuesday to prepare the committee's agenda, I agreed that we would study the issue of ghost consultants and migrant workers, which is underway this week, provided that we completed the clause-by-clause consideration of my Bill C-291 on the Refugee Appeal Division on Thursday. However, last Thursday, once our business was completed and there remained only about five minutes to vote on the one and only clause in the bill, the Conservatives introduced a dilatory motion, seconded by the Liberals. They had obviously consulted each other in advance since there wasn't even any debate on the matter. The purpose of the motion was to defer to a much later date the study of Bill C-291, on which Parliament has ruled on a number of occasions.

Parliament spoke once eight years ago, when it decided to implement the Refugee Appeal Division. In 2004, this committee unanimously held in favour of implementing the Refugee Appeal Division. In the last Parliament, an identical bill was passed with the support of the Liberals and the NDP. This time the Liberals supported the bill again in committee.

We have to be consistent. We can't support this bill in the House on the one hand and, in committee, accept a dilatory tactic designed merely to conceal a certain hypocrisy. Ultimately, you support the bill because that looks good in public, but you don't intend to pass it.

I understand why the Conservatives are trying to delay this bill. It's legitimate in their case, since they oppose it. So they are doing it in good faith. Nevertheless, today I'm asking the Liberals to show that they are in good faith as well when they say they support Bill C-291. We have five minutes left, which is enough to conduct the clause-by-clause consideration and to adopt this bill.

Although we often like to do nice things for the media that have good show value, I would like to remind you that our primary duty is to vote on and pass laws. I am opposed to deferring this item until the fall. Rather than devote time to making presentations that are often more for show than the work of a legislator, let's use the five minutes we have left to study my bill.

For all these reasons, I invite the members, particularly the Liberals, to show their good faith in this matter and to proceed immediately with the clause-by-clause consideration of the bill. It will take us five minutes, and we can refer the bill back to the House.

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

I'll try to do that.

Thank you, Mr. Chairman.

May I start by introducing my two colleagues?

Micheline Aucoin is the director general of refugee affairs in the department, and Luke Morton is senior counsel in our legal services unit.

Let me start by thanking you for the opportunity to appear before the committee to discuss Bill C-291.

As members of this committee are aware, the Government of Canada is a firm supporter of the humanitarian dimensions of our immigration program. However, it does not support this proposed legislation. Although a lot of time and a lot of words have been expended so far on the proposed refugee appeal division, the government's position can be articulated quite simply. If Bill C-291 is passed into law, it will not help address the challenges facing the refugee status determination system, and in fact it will likely hinder the system.

As I will argue below, a system with multiple review and appeal points does not need another one. Indeed, the excessive delays found in the current system may to some extent seem to benefit individual applicants. In point of fact, I do not think this is the case, as the system spends far too much time dealing with applicants with little or no claim, to the detriment of those who have a real claim to make and who we have a responsibility to deal with in a reasonable timeframe.

Every year, Canada takes in nearly 250,000 new permanent residents who adopt the Canadian values of freedom, democracy, respect for human rights and the rule of law. They include thousands of refugees attracted by our values and the chance to start new lives. In the past three years alone, more than 80,000 refugees from around the world have been accepted through the Refugee Resettlement Program and Canada's refugee system. In fact, Canada is one of the three countries in the western world that admits the most refugees for resettlement purposes. We also know that the number of refugee claimants in Canada has risen at a higher rate than in most other countries of the world.

In 2008 there were almost 37,000 new refugee claims, as compared to over 28,500 in 2007. This represents an almost 29% increase in refugee claims. A recent United Nations report indicated that the percentage increase of refugee claims for Canada is almost three times the average of the 51 countries they studied. The welcome we extend has given us an international reputation as a champion of human dignity. Nevertheless, Mr. Chairman, this is a system under serious pressure. It is becoming clear that our refugee protection system, while recognized internationally as one of the fairest and most generous in the world, faces a number of challenges.

We know our in-Canada refugee status determination system is complex and can be slow. At the moment, even the most straightforward refugee claim takes far too long to be resolved. But it is the large and growing number of unfounded claims that is putting an incredible strain on our system. For instance, lately there's been a sharp increase in the number of asylum seekers from other countries with relatively low acceptance rates at the Immigration and Refugee Board. Mexico is a good example: almost 90% of claims from Mexican nationals were not accepted by the IRB last year. In fact, and it's important to remember this, last year only 42% of all refugee claims were found by the board to be valid.

We need to consider whether this is an efficient use of resources, or if unfounded claims are bogging down the system and slowing the process for those who truly need Canada's protection. In this context, I want to stress that even without Monsieur St-Cyr's proposed refugee appeal division, Canada's refugee status determination system meets all the requirements of the charter and all of Canada's international legal obligations.

Mr. Chairman, the government has maintained it is committed to exploring options to improve the refugee status determination process so it can better assist the people it was designed to protect and who Canadians want to protect. The question is whether Bill C-291 is the way to go.

Failed refugee claimants already have access to three recourse mechanisms that ensure no one is removed from Canada before all aspects of their case have been thoroughly reviewed. These failed refugee claimants can apply for leave to the Federal Court for judicial review, they can apply for pre-removal risk assessment, and they can apply for permanent residence on humanitarian and compassionate grounds. Indeed, these recourses are often available to applicants two, three, or more times.

I'd like to say a couple of words on the comprehensiveness of the judicial review available to failed claimants. You'll remember that Monsieur St-Cyr emphasized this aspect as well. It is sometimes asserted that the Federal Court does not review the decisions of the refugee protection division on the basis of errors of fact. This contention is not supported by the law, or by Federal Court jurisprudence. Parliament has given the Federal Court legislative authority to overturn a tribunal decision on several grounds, including an erroneous finding of fact that is made in a perverse or capricious manner without regard to the material before it. There are numerous examples in the jurisprudence where the Federal Court has remitted a matter to the refugee protection division on the basis of an erroneous finding of fact.

The point I'm trying to make here, Mr. Chairman, is that the Federal Court is a comprehensive appeal body from the refugee protection division. The Federal Court can review matters of law, matters of fact, and mixed matters of fact in law. It is in fact the appeal body Mr. St-Cyr is talking about in a different mode.

Implementation of the proposed bill would add an additional review stage that would further extend the process. In addition, Bill C-291 proposes only a paper review of refugee claims refused on questions of fact and law. It provides for neither the introduction of new evidence nor a hearing in person.

However, it will no doubt have the effect of increasing costs and further slowing an already overloaded system. The cost associated with the implementation of the Refugee Appeal Division is estimated at some tens of millions of dollars in addition to permanent annual costs that will have to borne by the federal government and provincial governments. In addition, it would extend the processing time for the files of refused claimants by at least five months.

Mr. Chairman, the fact that many refugee claimants are not genuine refugees offers food for thought. This means that we are devoting a large portion of our time to processing claims filed by individuals who are not genuine refugees and who are ultimately refused. As I've already said, our ability to assist individuals who are genuinely in need of help is thereby further reduced.

Minister Kenney has stated that he wants to look at changing the system as a whole. We submit that implementing the refugee appeal division at this time would complicate efforts to improve the efficiency and effectiveness of the refugee status determination system and would make the existing system more cumbersome. I would therefore ask members of this committee not to proceed with Bill C-291.

Mr. Chairman, thank you. I would be pleased to try to answer any questions the committee might have.

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

Thank you, Mr. Chairman.

I am pleased to examine the bill I have introduced, Bill C-291, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171).

At the outset, I would like to recall the text of the motion.

Whereas: The Refugee Appeal Division is included in the Immigration and Refugee Protection Act; Parliament has passed the Immigration and Refugee Protection Act and can therefore expect that it be implemented; and The House of Commons and parliamentarians have a right to expect that the Government of Canada will honour its commitments; The Standing Committee on Citizenship and Immigration requests that the Minister of Citizenship and Immigration implement the Refugee Appeal Division without delay.

That motion was unanimously agreed to by this committee, the House of Commons Standing Committee on Citizenship and Immigration, on December 14, 2004. Nearly five years ago, the four political parties around the table believed that the Refugee Appeal Division should be implemented without delay. I am convinced—and this is my greatest wish—that the same political parties meeting here today will consider that five years of waiting is much too long when they believe that something should be implemented without delay. Bill C-291 must be passed soon.

In the House, I have had occasion to name a number of organizations that formally supported this bill. I won't name them all again, but I would like to single out a number of organizations that themselves represent a number more, or that represent a number of people. They are as follows: Amnesty International, the Quebec Immigration Lawyers Association, the Barreau du Québec, the Canadian Bar Association, the Canadian Council for Refugees, the Fédération des femmes du Québec and the Table de concertation des organismes au service des personnes réfugiées et immigrantes.

Bill C-291 has received the widespread, not to say unanimous approval of the organizations involved in the advocacy of immigrant and refugee rights and from the legal community.

The reasons for this bill are very simple and can be divided into two categories. The first category concerns natural justice. The second is important for reasons of efficiency.

I'll start with the issue of natural justice. As you are no doubt aware, Mr. Chairman, in our Canadian legal system, it is still possible to appeal from court decisions. The same is true in the case of crimes and much less serious disputes, that is to say the consequences of which for individuals are much less significant than the consequences related to deportation to the country of origin of a person who seeks asylum in Canada because his life is in danger.

And yet there is currently no opportunity to file an appeal on the merits with the Refugee Appeal Division. These are decisions that may have serious consequences for the lives of individuals. These individuals may be sent to torture or even death. If provision is made for appeals to be instituted in cases where the lives of individuals are not threatened, it should be possible to do the same in these cases.

This is a matter of natural justice, and there must be an end to the arbitrary attitude that currently reigns. Arbitrariness arises in any organization composed of human beings. Human beings inevitably make mistakes and are not perfect. That is why our justice system provides for the possibility of appeal.

Although this is not true of the majority of board members, there are some who are simply incompetent. This may be seen from the refusal rates of some, which approach 100%. One seriously wonders whether some are not simply racist.

I would like to encourage members to do the following simulation in their heads. Imagine you are appearing before a judge—and I hope you never will—because a charge has been laid against you, and you learn that this judge convicts 98% of the individuals who appear before him. You inevitably think that this is all a masquerade, that you have no chance. And yet we tolerate that for refugees.

At the other extreme, some board members have acceptance rates of nearly 100%. As a result, individuals who are not refugees within the meaning of the act file claims and are lucky to be dealing with a fairly easy-going member who allows their claims and lets them enter the country as refugees.

Mr. Chairman, I would like to recall that there is no possibility of appeal on the merits. Of course there are a number of other mechanisms based on related matters, but none of them makes it possible to institute a genuine appeal on the merits. The pre-removal risk assessment (PRRA), enables a claimant whose claim has been refused to present new evidence before being deported. However, if the work has been done well at the time the refugee claim is filed, if all evidence has been submitted and there is no new evidence to provide, the PRRA provides no remedy.

As to the possibility of seeking a judicial review in Federal Court, first, it must be emphasized that this procedure is rarely allowed and, second, even where it is, it can only concern the formal aspect, the legality of the decision. In no case can a refused claimant or even the minister—because the Refugee Appeal Division could be used by the minister—ask the Federal Court to rule on the merits of the case.

Lastly, the permanent residence application on compassionate grounds is not a viable avenue either. By its very nature, it is a purely discretionary option, and thus just as arbitrary, and those who file such an application may always be deported before the decision is even rendered.

Mr. Chairman, with respect to natural justice, the Refugee Appeal Division will permit coherence among decisions. There's currently no way to know from the outset, in a definitely reasonable manner, what the board members' decisions will be. We have the example of two Palestinian brothers who were in the same situation and who filed identical claims. The claim of one of them was allowed by one board member, while that of the other was refused by another. This makes the system completely inefficient.

I now come to the question of efficiency. One may think that there will be fewer applications for judicial review with a Refugee Appeal Division. Lawyers currently use this mechanism, this option, somewhat out of despair, because they feel that their client has been a victim of an error. This is virtually the only method they see, but it does not work very well. Judicial review is a very costly method. These are very busy, unspecialized courts, unlike what a Refugee Appeal Division would be.

Lastly, the enhanced predictability of board members' decisions should result in fewer frivolous claims being received at the outset, since the minister would also be able to appeal from decisions. As a result, the lawyers of individuals whose claims have no chance of being allowed will no doubt be advised not to file them, since that would be pointless. We currently hear more and more about the board member “lottery”: you file a claim, you throw the dice and, if you are lucky, you get a good board member and your claim will be allowed, whereas if you're dealing with a bad board member, it will be refused. This is what must be stopped.

In conclusion, Mr. Chairman, I would like to recall that Parliament has ruled on this matter on a number of occasions. It did so for the first time in 2001 by passing the Immigration and Refugee Protection Act. Then, in 2004, it unanimously supported a motion introduced by the four parties requesting that the Refugee Appeal Division be implemented, and immediately, as I recall.

In the last Parliament, Bill C-280, the intent of which was exactly the same, passed through all stages in the House of Commons. It was also passed in the Senate. Unfortunately, as you know, Mr. Chairman, the bill died on the Order Paper, because the House of Commons lacked the time to adopt the Senate's amendments.

I encourage all members of this committee to be consistent with the position they adopted in 2004 and to give their unanimous support to Bill C-291.

Immigration and Refugee Protection Act

[The Acting Speaker, NDP, Denise Savoie]

Pursuant to order made Tuesday, April 21, 2009, the House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-291 under private members' business.

The House resumed from April 20 consideration of the motion that Bill C-291, 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.

The House resumed consideration of the motion that Bill C-291, 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.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, it is my turn now to rise in favour of Bill C-291, introduced by my colleague from Jeanne-Le Ber on behalf of the Bloc Québécois. As my colleague from Saint-Bruno—Saint-Hubert already pointed out, it is absurd that we have a bill here to force the government to fully implement legislation already passed by the House and entitled the Immigration and Refugee Protection Act. Sections 110, 111 and 171 of this act provided for the creation of a refugee appeal division, which was supposed to enable claimants who were initially refused refugee status to appeal the adjudicator’s decision.

As things currently stand, a single adjudicator judges the validity of a claimant’s fear of persecution if returned to his country of origin on the basis of his race, religion, nationality, membership in a particular social group or political opinions. Sections 110, 111 and 171 creating the refugee appeal division were supposed to be implemented four years ago to enable people to appeal the decisions of adjudicators, but they still have not come into force.

I worked for nine years in the offices of two Quebec immigration ministers. For much of that time, one of my jobs was to deal with the cases of refugee claimants whose applications had been turned down by federal adjudicators and who were now appealing to Quebec ministers to try to find a solution to the impasse they were in. This job helped me understand the terrible solitude of many of these people and how helpless they felt when faced with a sole adjudicator without any chance of appeal.

In many cases, I had an opportunity to read the decisions handed down by the adjudicators very carefully. Some rejections, of course, were perfectly well-founded, but others left me stunned by the ignorance or insensitivity of the adjudicator. When some adjudicators reject nearly 100% of the claims submitted to them, the inevitable conclusion is that they are motivated much more by a desire to get rid of people who, in their view, disturb our society than by the humanitarian principles and compassion that should guide any civilized person or nation.

Because of the way in which the law is currently being applied, or more accurately, is not being applied four years after passing the House, claimants still have no chance of appealing arbitrary decisions based sometimes on bizarre reasons.

We, the Bloc Québécois, are not the only ones calling for the implementation of the refugee appeal division provided for in the legislation. For many years, countless voices have been raised, calling for a refugee appeal division. Before the Immigration and Refugee Protection Act even came into effect, the Inter-American Commission on Human Rights was calling for such an appeal division:

Where the facts of an individual’s situation are in dispute, the effective procedural framework should provide for their review. Given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection.

In a letter dated May 9, 2002, the United Nations High Commissioner for Refugees said that it considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process.

For all these reasons, I urge all members of this House to support Bill C-291 introduced by the Bloc Québécois.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I must admit I am somewhat disappointed and saddened, because in the speech just given by the member from the Conservative Party on Bill C-291 some of the language was offensive to me. She talked about refugees having useless appeals and about the additional health and social services costs, as well as court and IRB costs.

What I did not hear and what I think is the reason people want this bill to go to committee is that the system does something very important to Canadians: it is our duty and our social responsibility. The member is familiar with the system and she gave some statistics. However, when we consider that the Parliament of Canada passed an act, we have been through this before. We understood what the role of the amendment to the Immigration and Refugee Protection Act would be and the issue of the implementation of the refugee appeal division. The bill is very straightforward. It is just three paragraphs long, and it asks for enforcement on a bill that has already been passed by Parliament.

It puzzles me from the standpoint that it reminds me of an attitudinal issue about how people address newcomers to Canada. Obviously we have two forms: one is the application from abroad for immigration; and the other is the refugee system.

Legitimate refugees are determined in a number of ways. Primarily the UN designates which countries have legitimate refugees, but the member will also know that at one point in time almost half of the people applying for refugee status in Canada came here from across the Canada-U.S. border. They landed in the U.S., found out that they could not get the court assistance, could not get welfare, could not get social services or health care, so they came to Canada. The arrangement took a very long time to negotiate with the United States, that when a legitimate refugee lands in safe haven, it is that place of first safe haven that is the jurisdiction in which it has to be dealt with.

Those are the kinds of things that we have to be vigilant to fix. The member seems to be preoccupied by costs. The member seems to be preoccupied that we do not need more refugees. We have a responsibility. That value is what we have to deal with.

I want to reassert that I have been a member of Parliament for almost 16 years now. We have had many, many cases through our office. It is a very busy office near the Pearson airport. The Peel members deal with a very large number of refugees. As to the idea that somehow it already takes five years to go through all the various levels of appeals and this is going to make it worse, if a situation is taking five years, let us understand why. Maybe when the member's office gets more involved in these over a period of time she will understand that there are many cases where it is not the refugees themselves who are the reason for the delay.

Before I became a member of Parliament, I had a practice as a chartered accountant and did work for multicultural assistance services in Peel and also for the Peel Multicultural Council, which assisted refugees coming to Canada. People would get off airplanes in the middle of winter wearing sandals, shorts and a T-shirt, and that is all they had to their name. It has been a long time since I looked at the statistics, but there are millions and millions of human beings around the world who have no country, who have no future, who have no life. They are just like every other Canadian in that they are looking for better lives for themselves. A better life for them is where they can have the dignity of a roof over their head, proper nutrition, and an opportunity to be as good as they can be.

It bothers me, it concerns me, and it troubles me, because I remember hearing many times from members—and I am not going to be too partisan on this—the question, why are we letting all those criminals into the country? That was applied to all immigrants and it was applied specifically, for those who perhaps knew the system, to refugees. Somehow they said that immigrants and refugees were all the problem, because those happened to be the ones who were in the newspapers.

When I was a member of the finance committee, StatsCan reported to us the statistics related to new Canadians. Immigrants are actually better educated than born Canadians, because they cannot get into Canada otherwise. They are healthier than born Canadians. They are least likely to fun afoul of the laws, because to get into this country is very difficult.

Unfortunately, we tend to have arguments coming forward to us where the refugee issue is mixed in with the immigration issue. It is different. I know many Canadians do not understand it, but on the refugee side, it is not a great number, but the system is difficult because we have people who got bad information from people who got them into Canada, where they had destroyed their papers, if they had any, or they came from places where there were no papers and it was going to take a long time for them to get papers and they had to go through all the various checks.

We are dealing with people who come from countries that do not have the same government administration that Canada does. There is no support or very little support for the people, especially when they are trying to find a better life.

Therefore, I am pretty sure Bill C-291 will pass, because I think the opposition members are not going to take the rhetoric of the department that says it is going to cost a little more and is going to delay the process a little more. These are frivolous reasons in the context of the whole reason that Canada accepts refugees. It is a relatively small number compared to the number of people we bring in as immigrants.

The bill should pass. It should go to committee. We should look at this. During private members' business at second reading there are only two hours of debate. I think only about 12 people will get a chance to speak, and we do not get a chance for questions and comments other than with the mover of the bill. That is a problem.

I think the refugee issue is important to everyone in the House. The member may have raised some issues: is it a fact that it is taking too long; is it a needless or useless appeal? It has nothing to do with determining who is a legitimate refugee. We know who the legitimate refugees are. The question is whether they meet the criteria of being able to be here, because many refugees ultimately get turned away and sent back and it is a very serious proposition for that to happen.

We will take the allegations of the Conservative Party that it is going to cost money and the various problems that the member articulated, that we have to pay for their health care, and so on. These people have nothing. If we gave them nothing, as they do in the U.S., the only thing they could do possibly would be to rely on illegal activity to try to survive.

That is a problem. We do not want that. That is why we support refugees while they are here going through a legal process. We want to look at it more carefully. We want to make sure we dispel some of the myths that the member has raised.

[Alice Wong, Conservative, Parliamentary Secretary for Multiculturalism]

Mr. Speaker, once again, I would like to state the government's opposition to Bill C-291, the bill that seeks to establish the refugee appeal division.

Hon. members of the House know very well that this government is a strong advocate and supporter of the humanitarian division of our immigration program. Every year we welcome almost a quarter of a million new permanent residents who embrace our values of freedom, democracy, human rights and the rule of law. As an immigrant myself, I was one of them. Among these newcomers are thousands of refugees attracted by our values and the chance to start a new life.

Since the government came to office in 2006, we have accepted more than 51,000 refugees from around the world. In fact, Canada is one of the top three countries in the western world in terms of the numbers of refugees we accept for resettlement. The welcome we extend has given us an international reputation as a champion of human dignity. For example, we have made major commitments for the protection of Karen and Bhutanese refugees in Asia. We have also offered protection to refugees from Africa and Latin America.

We have a very generous asylum program as well. Asylum seekers from all over the world have found a durable solution to their refugee plight in Canada. Canada's asylum system has one of the highest acceptance rates among western countries, accepting 42% of claimants last year. No less than the United Nations High Commissioner for Refugees has called us a model for other nations.

Those are facts in which we can take great pride. I think we can all agree that Canada's refugee system is acknowledged as one of the strongest and fairest in the world today.

However, as everyone in this House knows, we also face significant challenges. It has long been the view of this government that the implementation of a refugee appeal division is not the way to address these challenges.

I would like to talk about the large and growing number of unfounded claims that are putting an incredible strain on our system. These unfounded claims are using up resources that should be used to help people with legitimate refugee claims. As a result, the wait times are getting longer. The most straightforward, successful refugee applications can take an average of two and a half years to reach permanent residency because of a backlog that has continued to grow, despite the current 90% occupancy of the Immigration and Refugee Board of Canada.

As the Prime Minister and others in this government have said many times before, Canadians expect our refugee system to help and protect legitimate refugees. The refugee appeal division proposed in Bill C-291 would not help us meet these objectives. It would provide only a paper-based review on issues of fact and law. It would not provide an opportunity to introduce evidence, nor would it provide for an in-person hearing. It would, however, add unnecessary delays and costs to an overburdened system. It is not just the cost of the appeal division which, as my colleagues previously have pointed out, would be in the tens of millions of dollars, but there would also be other costs to the provinces and the federal government for health care and social assistance. This is why it is surprising that the Bloc would be pushing the bill at a time of economic uncertainty that would increase the costs of services to the province of Quebec.

Moving to another point, I want to acknowledge the steps this government has taken to assure the quality of decisions at the Immigration and Refugee Board.

Based on the recommendations of the Public Appointments Commission Secretariat, we implemented a new process for the appointment of members of the IRB in July 2007. This new process strengthens the merit-based focus of governor in council appointments to the board and increases transparency and fairness at the same time. This was an important step forward that was endorsed by the Auditor General when she released her latest report this spring.

It is essential that refugee claimants and Canadians have the utmost confidence in the decisions of the Immigration and Refugee Board. This selection process helps to ensure that confidence. Since this government took office, there have been 111 appointments and 59 re-appointments to the Immigration and Refugee Board. The board now stands at 90% of its full complement. As a result, more genuine refugee claims can be process and finalized, while more frivolous asylum applications are dismissed more quickly.

However, even with a full complement, the rate of applications has increased beyond the capacity of the board, increasing the backlog. This is why the refugee system needs to be reformed instead of creating another useless appeal process that will only make the problem worse.

We have repeatedly urged the opposition to consider the comments already made by the government during this debate. We have a system where even the most straightforward successful refugee claims are currently taking too long to reach a decision. Unsuccessful refugee claimants regularly take over five years before they finish the various levels of appeals available to them. This is five years of federally funded health care and provincially funded social programs, on top of court costs and IRB costs.

Our goal should be to focus more of our time and resources on the people who genuinely need our help and protection, and deal more quickly with those who are trying to take advantage of our generosity.

While Canadians are proud of our support for refugees, less than one in four think we do a good job of removing people who not legitimate refugees. Not only do they read stories about how long people are here before we can deport them, they also notice increases in the number of asylum seekers from countries they do not consider unsafe. Hon. members know, for example, that there has been a sharp increase in the number of asylum seekers from Mexico and only 11% of those claims are accepted.

These failed refugee claimants now have assets to seek leave for judicial review of the IRB decision. After that, they may apply for pre-removal assessment and, if they are still unsuccessful, they may apply for permanent residence status via a humanitarian and compassionate application. This process will take years and all the while these failed refugee claimants have access to social benefits paid for by taxpayers.

Canada will continue to show strong leadership in providing protection to those in need. We will continue to work closely with the United Nations and our partners to do this. However, to do this we require some changes to ensure that people who are not legitimate refugees cannot take advantage of the system through a multi-year system of appeals that will only be increased by this bill.

We support strong and effective protection for genuine refugees but the implementation of the refugee appeal division, as described in Bill C-291, is not the answer. Again, I urge all hon. members not to support Bill C-291.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, today I would like to talk about Bill C-291, which seeks to implement an appeal division for refugee claims, introduced by my Bloc Québécois colleague, the member for Jeanne-Le Ber.

It goes without saying that I wholeheartedly support this Bloc Québécois bill. It is a fairly simple bill, but it is important because it would implement the refugee appeal division. Once Bill C-291 has been passed and has received royal assent, three sections of the Immigration and Refugee Protection Act, sections 110, 111 and 171, will come into force. These three sections would come into force one year after this bill receives royal assent.

The Bloc Québécois has decided to introduce a bill to ensure full enforcement of the Immigration and Refugee Protection Act.

A proper appeal process for refugee claimants ought to have been put in place as soon as the Immigration and Refugee Protection Act 2002 took effect in 2002. This is one of the significant changes required to ensure that asylum seekers are treated fairly and equitably.

The creation of the refugee appeal division is a matter of justice. To persist in not making this change, as the two most recent governments have done, is to allow a situation that is unfair to asylum seekers to continue.

When the Immigration and Refugee Protection Act was drafted, the refugee appeal division was seen as a fair compromise to satisfy the desire to move from two board members responsible for examining asylum claims to just one. Yet now we have the worst of both worlds. There is only one board member, not two, to examine the files, and there is no refugee appeal division.

The arbitrary aspect of the system is being magnified by the government's inaction and the piecemeal approach to implementing the new legislation. For four years now, the federal government has been stubbornly postponing the establishment of the refugee appeal division, as called for in the Immigration and Refugee Protection Act. It is time for the Conservative government to comply with the legislation and implement the refugee appeal division.

The federal government claims that a safety net already exists, consisting of the opportunity to request a pre-removal risk assessment—also known as a PRRA—a judicial review by the Federal Court, or permanent resident status on humanitarian grounds. However, unlike a refugee appeal division, they do not offer any protection for refugees. The Federal Court provides only for a judicial review and does not provide for a review of the facts of a case.

There is also a flagrant lack of political will to establish the refugee appeal division, or RAD, which, I would remind the House, is already enshrined in the legislation. After their own legislation came into effect, the Liberals avoided establishing the RAD. Now that the Conservatives are in power, the former immigration minister still has not established the RAD, despite the positions his party took in the past.

In 2004, the Standing Committee on Citizenship and Immigration adopted a motion calling on the then Liberal government to establish the refugee appeal division or rapidly come up with a solution. Yet the government has consistently refused to comply with the committee's motion.

The Bloc Québécois tabled an almost identical bill in the 39th Parliament. Our bill was passed by the House on October 16, 2007 and sent to the Senate to be studied. The bill passed third reading stage in the other chamber. However, because of the elections in the fall of 2008, our bill did not receive royal assent and died on the order paper.

Many groups in civil society in Quebec, Canada and the international community are demanding that a refugee appeal division be established. These include the United Nations High Commissioner for Human Rights, the UN Committee against Torture, the Canadian Council for Refugees, the Canadian Bar Association, Amnesty international, the Civil Liberties Union, and the KAIROS group.

There are four reasons why the refugee appeal division should be established: efficiency, consistency of the law, justice, and political reasons that I will explain.

A specialized refugee appeal division is a much more efficient means of dealing with unsuccessful claimants than the Federal Court, an application for pre-removal risk assessment or requests on humanitarian grounds. The refugee appeals division can do a better job of correcting errors of law or fact.

The second reason is consistency of the law. An appeal division deciding on the merits of the case is the only body able to ensure consistency of jurisprudence both in the analysis of facts and in the interpretations of legal concepts in the largest administrative tribunal in Canada.

In other words, an appeal mechanism helps the system to make decisions by establishing precedents that will be applied to lower court rulings when the facts are exactly the same.

The third reason has to do with justice. The decision to refuse refugee status has extremely serious consequences, including death, torture and detention. As in matters of criminal law, the right to appeal to a higher court is essential for the proper administration of justice. Because human error occurs in any decision-making process, it should be standard practice to have an appeal process, especially to offset the fact that decisions are now made by a single board member.

As I said earlier, the fourth reason is political. By not establishing the refugee appeal division, the federal government is going against the will of Parliament—which is a serious matter—and of the Standing Committee on Citizenship and Immigration, which has called for such an appeal division. As I said, this is a serious matter.

The Bloc Québécois is dismayed by the lack of justice shown by the Department of Citizenship and Immigration when dealing with refugees since the Immigration and Refugee Protection Act came into force in 2001.

Mr. Speaker, I would like to place this bill in context.

In 2001, during the first session of the 37th Parliament, the Minister of Immigration introduced Bill C-11 in this House, concerning persons who are displaced, persecuted or in danger who apply to enter Canada and receive refugee protection.

Bill C-11 was designed to update the former Immigration Act, which had been passed in 1976 and amended more than 30 times.

Unlike Bill C-11, which was passed in 2002, the Immigration Act, 1976, did not provide for a refugee appeal division. To make up for the fact that there was no refugee appeal division, two board members examined refugee claims.

Claims were granted if one of the two board members ruled in favour of the claimant. However, the Immigration and Refugee Protection Act cut the number of board members from two to one.

The refugee appeal division makes up for the absence of one board member and offsets the arbitrary power the remaining board member has in ruling on refugee claims. The Bloc Québécois considered this an acceptable compromise under the new act.

Why was the number of board members reduced from two to one? It would seem it was for the sake of efficiency.

On March 20, 2001, the former chair of the IRB, the Immigration and Refugee Board, Peter Showler, told the House of Commons Standing Committee on Citizenship and Immigration that:

In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions.

According to the former chair of the IRB, the presence of the refugee appeal division justified moving from two members to one for asylum claims. However, we still do not have an appeal division.

The act contains three sections to create an IRB-administered refugee appeal division. Citizenship and Immigration Canada briefly defines the refugee appeal division as follows:

The refugee appeal division will provide failed refugee claimants and the minister with the right to a paper appeal of a decision from the Immigration and Refugee Board. Unsuccessful refugee claimants have the right to apply for judicial review in the Federal Court.

More specifically, the three sections that create the refugee appeal division are as follows:

110. (1) A person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection, or a decision of the Refugee Protection Division rejecting an application by the Minister for a determination that refugee protection has ceased or an application by the Minister to vacate a decision to allow a claim for refugee protection.

Mr. Speaker, I hope that these arguments have persuaded members of other parties, particularly the governing party, to vote in favour of Bill C-291.

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

Mr. Speaker, I am pleased to have the opportunity to speak in the debate on private member's Bill C-291, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171).

This is not the first time that I have discussed this type of legislation, and I want to thank the member for Jeanne-Le Ber for reintroducing the bill. This legislation was introduced in the last Parliament by another member and the House passed it in the last Parliament. It then went on to the Senate where, with a few amendments, it was also passed. Unfortunately, it did not have an opportunity before the last election to come back to the House to have those amendments approved, and therefore, the bill died without having completed the full parliamentary process. The fact is we are now debating that bill as amended by the Senate in the last Parliament. We are talking about it yet again.

The bill calls for the implementation of legislation that in fact was passed by Parliament back in 2001. It calls for the implementation of the refugee appeal division, which is a feature of the Immigration and Refugee Protection Act that was passed here in the House after a lengthy process back in 2001. When the Liberal government of the day implemented that legislation, it refused to implement the provisions dealing with the refugee appeal division. Those sections that are named in the current bill we are discussing today were never implemented. The Conservative government has also refused to implement the provisions regarding the refugee appeal division.

We are now in this bizarre situation where we are debating a bill to implement legislation that has already been passed by the House of Commons and the Senate. The bill has been largely implemented, except for one part. One of the strange features of my time here in Parliament is that we actually would need to debate legislation to implement legislation that we had already fully debated and passed in this place a number of years ago, but that, in fact, is what this is about, because of the government's refusal to abide by the will of Parliament, by the decisions of parliamentarians, on the Immigration and Refugee Protection Act back in 2001. This is disturbing because the refugee appeal division emerged out of the debate and discourse and the committee hearings in 2001 on the Immigration and Refugee Protection Act.

It emerged as a compromise because the government of the day wanted to reduce Immigration and Refugee Board panels from two members to one member. It was thought that to serve the needs of fairness and justice, a one member panel only represented the interpretation of one person and that increased the likelihood of mistakes, errors and inconsistencies. It was thought that some other appeal process was necessary to balance that reduction in the panel from two members to one member. A compromise was struck. Members of Parliament agreed to the reduction of the panels from two members to one but also insisted that the refugee appeal division, the RAD, be a part of the legislation in order to give people a recourse to appeal a decision made by a panel in a refugee determination case.

That was a very important piece of the process. It showed Parliament perhaps at its best by reviewing legislation, finding the problems, responding to the needs that the government of the day addressed, and finding a compromise and implementing that compromise. Yet after the fact, the government went ahead and reduced the panels from two members to one, but refused to implement the other procedure that would have ensured some fairness and some justice. The government refused to implement the refugee appeal division. That speaks rather badly of the government of the day and its respect for the parliamentary process that we engage in here daily.

If the Conservative government had respect for the kind of process we go through in this place, it would move immediately to implement the refugee appeal division. New Democrats would certainly proceed that way. We have been strong supporters of the implementation of the RAD.

I remember speaking to people at the Canadian Council for Refugees a number of years ago when I was acting as citizenship and immigration critic for the NDP and indulging a fantasy that some day I would be the minister of citizenship and immigration. I gave notice then, and I will do it again, that should I ever become minister of citizenship and immigration, I would expect the folks working in that department and the minister's office to blow the dust off the pile of paper in the corner of the office that is the refugee appeal division file and put it on my desk. One of the first things I would do would be to implement the provisions of the Immigration and Refugee Protection Act without delay because it would bring a measure of fairness that is required. It would also respect the parliamentary process.

This is not an extra piece of process; it is an essential piece of the refugee determination process. There are many concerns about that process. I have mentioned already that in Canada when a person goes before the IRB, that person goes before a one member panel, which means that his or her future is in the hands of a single person.

Many of the folks who serve on the IRB do great diligence in that job and are very concerned about the process and the work they do. However, the reality is that one person can make mistakes. One person can have a blind spot. When there were two members on the panel, through the discourse they engaged in at a hearing, those blind spots could be exposed and could see the light of day, but with a one member panel that is not as possible.

When a single person determines the fate of a refugee claimant, a bad decision can mean that the person is removed from Canada ultimately and sent back to a situation where the person faces danger and threats to his or her life. The basis of the whole refugee process is to protect people from that kind of threat. Therefore, a one person panel is a very serious problem with our current refugee determination process.

We have seen over the years that the IRB process can be very inconsistent. Different panel members make different decisions based on the same facts. There is a huge inconsistency in IRB decisions. This is another reason that a separate refugee appeal division is so important to that process. It would strive for more consistency in the process.

Everyone knows that mistakes are made in any decision-making process. That is why appeals in the refugee appeal division are very important. We also know there are often difficulties finding, and being able to afford, appropriate representation. There are difficulties dealing with a legal process that people may not be familiar with because of cultural and language differences and their newness in Canada. There are often difficulties with the hearing process itself. There are times when not every bit of information is examined and due process does not take place in the course of hearings. That is another reason that a separate appeal in the refugee appeal division is very necessary.

There have been calls from international organizations for Canada to implement an appeal. While Canada is known around the world for having a positive refugee policy, it is also known that the lack of an appeal is one of the significant shortcomings in the refugee process in Canada. We have been criticized by a number of international organizations for the lack of an appeal on the merits of a case.

The Inter-American Commission on Human Rights commented:

Given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection.

That was its reflection on the lack of an appeal before a refugee appeal division in Canada.

The United Nations High Commissioner for Refugees wrote to the Canadian government to express concern about the non-implementation of the RAD. The UN High Commissioner for Refugees considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process.

This is not frivolous. It is not an expensive proposition. The previous government and the current government have indicated the expenses related to it. It is a necessary provision. I hope that I never have to stand in this House again to call upon the government to implement legislation that was in fact passed here in 2001 and is already part of the Immigration and Refugee Protection Act. We need the refugee appeal division and we need it to be implemented now.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Mr. Speaker, I rise today to speak to Bill C-291, moved by the hon. member for Jeanne-Le Ber. It is an act to amend the Immigration and Refugee Protection Act, coming into force of sections 110, 111 and 171.

As I read the statements made by the hon. member, I just want to bring to the attention of the House the type of work that is required to address Canada's refugee system and the challenges it faces. What became very evident during the debate, here in this chamber and outside the chamber, was that there are many challenges faced by the refugee system in this country. I want to quickly read some sections from the speech delivered by the hon. member for Jeanne-Le Ber. He said:

Let us start at the beginning, with the issue of arbitrary decisions. There are quite a few board members at the Immigration and Refugee Board of Canada (IRB), many of whom are undoubtedly competent. However, the problem is that many of these people are not well-suited to this work.

He went on to say:

There is an obvious problem here: some commissioners do not have what it takes to do the job. We need an appeals division to overturn these decisions. Even if they were all very competent, we would still have a natural justice issue on our hands. Even though we have very competent judges in our other courts, we still have an appeals division. Why do citizens and permanent residents have access to appeals in the regular system, but refugees do not?

The second reason he gave was the lack of consistency in the decisions:

When there is no appeal division, each IRB member can decide one way or the other. As all immigration lawyers will agree, this makes it impossible to tell someone whether they are eligible or not by simply looking at their file.

Lastly, I think we could even save money in our justice system, since the appeal division, as it is defined in the legislation, is an administrative tribunal. But since this administrative tribunal does not yet exist, claimants who have been refused by the board tend to avail themselves of all kinds of procedures before superior courts to try to obtain justice. In the end, this is more expensive for the system, since those proceedings tend to be much more costly.

The view on the other side, of course, is the government response through the Parliamentary Secretary to the Minister of Citizenship and Immigration. He has a different view on this issue. He said:

The government opposes this legislation because it is neither necessary in the current system nor is it efficient. It would add considerable delays and costs, both in the start-up and operating costs as well as the prolonged costs for services provided to failed refugees waiting for their fourth level of appeal, which would be this appeal division.

The cost of implementing the refugee appeal division would be in the range of $15 million to $25 million annually in new operating costs, about the same amount in social services costs paid by both the provincial and federal governments for refugees, not to mention start-up costs of approximately $10 million.

He also said he believed there were individuals taking advantage of our compassionate nature in seeking refugee status on dishonest grounds, and on and on.

I thought it was my responsibility, when there are divergent opinions coming from both sides of the House, to promote debate in the House. I listed some of the supporting arguments to implement the refugee appeal division, which means passage of the bill would ensure that the entire design in IRPA would be realized.

Implementation of RAD would increase the efficiency of the system, while still ensuring the humane treatment of those in need of protection. The creation of RAD would allow for greater consistency when reviewing the facts of a decision. RAD would serve as a procedural safeguard to enhance the IRB's credibility and ensure justice is done so that no decision to deny refugee status leads to serious consequences, such as detention, torture or death.

A human decision-making process is subject to potential errors, especially when information is limited, and testimony is usually heard through an interpreter. Judicial review of an IRB decision is more limited in scope than the appeal contemplated in the RAD. The court cannot replace a decision by the IRB with its own judgment and the Federal Court does not specialize in refugee matters whereas advocates for the RAD would have an expertise in refugee determination. That is one side.

The other side says:

--implementing the Refugee Appeal Division (RAD) at this time would provide very limited benefit at a very high cost...the RAD would only provide a review on the record similar to a federal court review, without the calling of additional evidence or the provision of new or additional facts...an appeal to the RAD...would allow only a paper review of a RPD decision, and that no new evidence would be allowed to be presented at a proceeding before the RAD. To add another layer of appeals and process would simply make an already extremely lengthy refugee determination process even longer. Failed refugee claimants can apply for a Federal Court review of their decision. They can also apply for a pre-removal risk assessment and for permanent residence on humanitarian and compassionate grounds, including consideration of possible risk if returned to their home country. As things stand, it can take years to conclude the adjudication of a case. To add additional months and even possibly years to the delays is unfair to refugees and their families who expect a timely resolution and decision with respect to their application for refugee status...Resources would be better directed at seeking ways to improve and streamline the existing refugee determination process as a whole.

I do this research. I meet with people. I talk about the refugee system with those people affected. I speak to the people on the government side. I speak to the hon. member who proposed this private member's bill and I am left with a decision. I think this particular bill requires further study. I want to draw the member's attention to a question that I asked of the Minister of Citizenship, Immigration and Multiculturalism where I quoted the departmental performance report. Under the Conservatives, the backlog of refugee claims has more than doubled. The number of finalized claims has decreased by 50%. The average processing time has increased to 14 months. The average cost per claim has increased by almost $2,000 to nearly $5,000. My question was: Why has the government failed to provide a timely and efficient refugee system to people who desperately need it?

One may think I am being unnecessarily critical. However, in response to my question in question period, the minister basically came back to me and said:

I am really delighted to hear the interest of the member in hopefully working together to create a more efficient refugee determination system.

I do this with a great deal of sincerity. I see that there are divergent views that exist on this particular issue. When there is a minister who in many ways admits that there are problems in the refugee system and that we need to collectively work together to improve the system, I think it is time to provide this member and members of our immigration committee with further study. There has also been a very critical report by the Auditor General on this particular issue. We need to take the time to study this bill. While we are studying this bill in committee, we should also be looking at all the issues I have raised. Working together to improve Canada's refugee and immigration systems is a commitment that I have made to the House.

I think it would be wise of all members in the House to support the bill so that we can study this particular issue. There are divergent opinions that require time and reflection, so that we may have a more efficient and effective refugee system and protect those individuals who require protection.

The House resumed from March 12 consideration of the motion that Bill C-291, 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.