Bill C-11 (Historical)

Balanced Refugee Reform Act

An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act

This enactment amends the Immigration and Refugee Protection Act, primarily in respect of the processing of refugee claims referred to the Immigration and Refugee Board. In particular, the enactment
(a) provides for the referral of a refugee claimant to an interview with an Immigration and Refugee Board official, who is to collect information and schedule a hearing before the Refugee Protection Division;
(b) provides that the members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act;
(c) provides for the coming into force, no more than two years after the day on which the enactment receives royal assent, of the provisions of the Immigration and Refugee Protection Act that permit a claimant to appeal a decision of the Refugee Protection Division to the Refugee Appeal Division;
(d) authorizes the Minister to designate, in accordance with the process and criteria established by the regulations certain countries, parts of countries or classes of nationals;
(e) provides clarification with respect to the type of evidence that may be put before the Refugee Appeal Division and the circumstances in which that Division may hold a hearing;
(f) prohibits a person whose claim for refugee protection has been rejected from applying for a temporary resident permit or applying to the Minister for protection if less than 12 months have passed since their claim was rejected;
(g) authorizes the Minister, in respect of applications for protection, to exempt nationals, or classes of nationals, of a country or part of a country from the 12-month prohibition;
(h) provides clarification with respect to the Minister’s authority to grant permanent resident status or an exemption from any obligations of the Act on humanitarian and compassionate grounds or on public policy grounds;
(i) limits the circumstances in which the Minister may examine requests for permanent resident status or for an exemption from any obligations of the Act on humanitarian and compassionate grounds; and
(j) enacts transitional provisions respecting the processing of pending claims by the Minister or the Immigration and Refugee Board.
The enactment also amends the Federal Courts Act to increase the number of Federal Court judges.

Balanced Refugee Reform Act

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I want to congratulate the member on her fine speech and ask her to focus on the humanitarian and compassionate considerations raised by this bill.

This bill, as I understand it, would bar refugee claimants from applying for humanitarian and compassionate grounds while their claim is in process and for 12 months afterwards. Applicants claiming humanitarian and compassionate grounds would also be barred from raising factors related to risks feared in the country of origin. Some people view this as unfair because the agency application is necessary as a recourse to consider human rights issues, including the best interests of a child, and potential risk to a person.

Closing off this recourse would provide a bar on raising risk factors that will be difficult to apply and, of course, prohibiting consideration of risk factors will force some agency applicants to make a refugee claim, thereby clogging the system unnecessarily.

I wonder if my hon. colleague would care to comment on the humanitarian and compassionate considerations raised by this bill.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Madam Speaker, I understand what my colleague is saying.

Both the current procedures for considering humanitarian grounds and the pre-removal risk assessment are very inadequate mechanisms. It takes nearly 200 days for this type of decision to be made, and only approximately 2% of cases are accepted. The system puts the emphasis on refusal and excludes many motives that the general public, were we to ask them, would consider valid.

That is my point. Work needs to be done so that decisions can be made as quickly as possible and so that we can avoid going down that path.

It is my understanding that the minister is open to amendments. I hope that this type of amendment will be proposed so that we can make this bill an excellent one.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, factors that we would like to see in a good refugee-based system include accepting the premise that refugee determination is difficult. As it is rarely obvious who is a refugee, it is important to assess each case on its individual merits, invest in high quality initial decisions, keep it non-political, have independent bodies involved in the process, put the necessary resources in place to avoid backlogs, and always, above all, remember that human lives are at stake and that Canada's international reputation and obligation to the world community are engaged as well.

I would like to know my hon. colleague's opinion of how well this bill meets those tests and whether or not she thinks that this bill can be improved and put in a form that would meet all of those different factors.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Madam Speaker, I think that the current bill could—if parliamentarians so desire—include worthwhile amendments that would address its shortcomings.

Again, I want to emphasize the initial decisions. If we ensure that the board members are adequately trained, have access to accurate information and have the right skills for the job, we will improve the quality of the decisions.

However, there is an element in this bill that still bothers me, and that is using civil servants to accomplish certain tasks. Not that I feel they are incompetent, but in parliaments such as England and elsewhere, statistics have proven that this type of amendment is ineffective.

I think that we need to study the system thoroughly and trust our partners, the people who work in this field, to propose the most effective and desirable reform.

[Daniel Paillé, Bloc, Hochelaga, QC]

Mr. Speaker, it may be surprising for a finance critic to take an interest in this kind of issue. My interest is very personal, and I have real-life experience. It is not at all because Elizabeth Thompson published a list this morning in the Toronto Sun of the 20 parliamentarians who spoke the most since the first session and to my great astonishment I am on the list. It is in fact because this reform calls for careful thought. We can talk about details, procedures, very technical bills, tax policy, taxes, and so on, but we can also discuss this kind of issue, which has an impact on people’s lives and on how a nation and a people are built.

When someone leaves their country to seek refugee protection in another country, it is because things have been bad for several years or it is difficult for them to leave their country. Leaving your country of birth, your neighbours, your friends and your family and going out by the back door is obviously enormously stressful. You do not bring three steamer trunks with you, with all your documents. Some people make it out with just their skin, and barely that.

So you arrive in a new country where you again experience stress. You are facing two fairly bizarre situations. Waiting for papers takes a lot of time, and so does the decision-making process of the Canadian authorities. The bureaucratic process is too slow and too complex. I could tell you how I experienced it personally.

Refugees are in a state of shock when they arrive in Canada. They have no papers and they do not know the person they are dealing with. And we should not take advantage of this situation. We tell them they have to find a lawyer for their appearance, which will take place in eight days. And to them, eight days is like tomorrow morning.

The bill contains a kind of contradiction. On the one hand, we can see some openness in it. Let us tell the minister, since he is doing us the honour of being with us. That is very brave of him. As a parliamentarian, I think it is quite remarkable for the minister responsible to be present when a bill is being debated in the morning.

So I was saying that this bill expresses the intention of going faster and finally bringing the Refugee Appeal Division on line. But on the other hand, we seem to be rushing things.

I have had the opportunity to work in policy, both as a public servant and in the private sector. You say that, from now on, it will happen in eight days. As my colleague was saying, the preliminary inquiry, if we can call it that, will last four hours. Then, 60 days later, there will be another appearance. That puts enormous pressure on the public service, and that is unfortunate. I have been a minister elsewhere, and I can say that we dream of a public service that follows us. But the minister knows very well that a department’s most temporary employee is its minister. Sometimes, the public service will wait for someone else to take the minister’s place and will hope they will be less demanding when it comes to deadlines.

That will happen to my colleague one day, I am sure of it. Sometimes, you leave one department and go to another according to the wishes of the Prime Minister.

We need to pay attention to this dichotomy: yes, we want to speed things up, but it has to be done right. Sometimes refugees wait too long in a receiving country for their status to be determined. It can take two, three or even more years before they are told by public servants that, upon review of their cases, it has been decided they do not qualify as refugees. These people would rather have known much earlier because they have established friendships and relations in their new country. They may have jobs, possibly short-term ones. In any case, these waiting periods are very long.

As I said, the principle behind this is good. That is why we would have liked to amend the bill in committee between first and second readings. That was refused, but we will do it after second reading. To this extent, the government has the Bloc’s support.

In regard to the delays, I would like to share an experience of my own. Nearly 30 years ago, I had to go to South America—it was not at all to a refugee-producing country, the system was entirely different then—to pick up a child who was six months old at the time. I went simply to get my son and take him out of the country.

I have no idea how this country would be classified on the current minister’s list. In the early 1980s, Peru had just emerged from a very tough military regime and was in a democratic period. Things have changed a little since those days. There was a threat called the Shining Path. How would this country have been classified on the minister’s list? Sometimes things change.

At the time, I was not interested in all that. I was interested in adopting a child. I arrived with the child at the airport in Toronto. We were in a time of peace and the international adoption had been duly authorized by the authorities in Quebec and Peru. I had the documents. My son had his Peruvian passport because he was, and still is, a Peruvian national, but his visa was winding its way between Ottawa and Santiago in Chile, which was the transportation hub for South America. When I left the airport in Lima to return to Canada, I did so illegally. We had been waiting for six weeks and had finally been told we could leave. I had my passport, and when I arrived at the airport in Toronto, the customs officer said I could enter but my son could not because I did not have his visa, which was on another plane that arrived in Toronto two days later. I took the baby, laid him on the officer’s table, and said he could take care of the baby and should be sure to remember to change his diaper. I obviously got the child in the end, but it took three years. Three years of procedures were needed for a Canadian to arrange with his government to normalize his own son’s status.

This goes to show how sluggish the administration of these things can be. Yes, the bill is supposed to grease the wheels of the public service. Yes, it improves the way things are done, especially appeals. But six days, eight days or 60 days are all the same if documents are lacking. In my case, I had all the documents needed, in Spanish, French and English.

In conclusion, I would like to ask the government to reconsider this bill and take advantage of our open-mindedness in order to improve it.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mr. Speaker, I want to thank my colleague for his comments that so vividly illustrate the reality for refugees coming to Canada. In my speech I focused on the issue of vulnerability and I think my colleague understood what I was saying and illustrated my point very well. He also illustrated the burden of red tape. Things can be done at the departmental level right away to simplify matters.

Can my colleague tell me whether, in his role as an MP, he has ever dealt with refugee claims? He is from an urban centre and I believe that he has witnessed some of the problems that exist with the current system. Does he have any reservations about the way the cases he has seen in his office have been handled?

[Daniel Paillé, Bloc, Hochelaga, QC]

Mr. Speaker, significant change occurs in a riding like mine, which is in the middle of downtown. There has been a significant change in the population that lives there. At one time, 100% of the people in the riding of Hochelaga were francophones and practising Catholics, but there have been many changes and now a certain number of new Canadians, new arrivals, live there.

Downtown Montreal is an attractive location and as a result we receive a certain number of cases. People who come to see an MP are sometimes a bit shy in doing so. In some cases, meeting an elected member is new to them. They wonder whether it is the same as in their country of origin or whether it is like a true democracy.

In fact, I believe it is an MP's duty to help people. I concur with the hon. member who spoke before my colleague. He talked about people who take advantage of the fact that these new arrivals are ignorant of our laws and customs and who charge these very vulnerable people inordinate amounts of money. I hope we can put a stop to this.

[Jason Kenney, Conservative, Minister of Citizenship]

Mr. Speaker, I completely agree with that last point. That is why, later this spring, we will be presenting a bill and several reforms to address the problems with the citizenship and immigration system caused by unscrupulous consultants who exploit immigrants to Canada, especially asylum seekers.

The member can rest assured that we will be taking serious action on this issue, and soon, I hope.

[Daniel Paillé, Bloc, Hochelaga, QC]

Mr. Speaker, this comment goes back to what the minister said earlier: he said that when he was in opposition, he opposed the minister on principle.

Regulations are unwieldy, and bills can sometimes be unwieldy too. Furthermore, when applied, regulations can give a bill an interpretation we may not necessarily intend.

I urge him to present all of the regulations as quickly as possible. My colleague from Jeanne-Le Ber spoke about the case of twin brothers who had been through the same things, but had unfortunately received two different decisions. Without the appeal, one would have been granted refugee status and the other would have been denied.

Incidentally, I urge my colleagues to listen to an excellent song called Maria by Jean Ferrat, who passed away not long ago. The song tells the story of two brothers, one on the red side and one on the white.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, Canada purports to be a champion of human rights and in many respects it is, but there are failings in Canada's system and one of those areas is the refugee determination system. Now is the opportunity to fix those failings. Now is the opportunity to improve.

Refugees are not just people in need, they are people. They are part of our history, part of our present and part of our future. The life stories of refugees are informative, not only of injustices around the world but of injustices that occur here in Canada with a bureaucracy that can and should be more responsive, more sensitive, more accommodating and more reasonable to the situations in which refugees find themselves.

Who are refugee claimants? They are people who are often fleeing dangerous situations which often are political and sometimes are societal. They seek fairness and justice for themselves and for their families, the kind of fairness we sometimes take for granted here in Canada.

Canada is an extremely wealthy country, a stable country and a country built on human rights principles. Our refugee system is one of the ways we can actually demonstrate to the world that we can be leaders in establishing a fast and fair system. We should hope that our system is duplicated around the world and not derided.

What we need is a streamlined system that avoids backlogs and makes the right decision the first time based on individual merits and without unnecessary rules. We need a system that truly recognizes it is deciding the future of someone's life and which represents our domestic human rights policies to claimants.

New Democrats have a history of advocating for a better determination system, a system that is fast and fair. We need more independence in the system. One way to do this is to use an independent appointment commissioner to hire Immigration and Refugee Board members. Board members should really have relevant expertise. We need to clear the backlog that exists, and we can do this by hiring more refugee officers.

Time after time we see inconsistent decisions being handed down. There is too much discretion in rejecting claims and not enough discretion in accepting claims. We need to create an appeal division that uses law and fact in order to make consistent decisions.

Refugee hearings have been tainted by bad advice from dodgy immigration consultants. These consultants, as we heard earlier in this House, should no longer be invited to the Immigration and Refugee Board hearing room. We should have the resources that allow for proper and fair representation of claimants and provide them with legal aid.

The bottom line is that we should empower refugee claimants, not stigmatize them. How we treat refugee claimants is indicative of the values our country espouses. In a country built on the backs of people from around the globe, our policies should reflect those values of democracy, fairness, human rights and a minimum standard of care and concern for the lives of others.

Here is some interesting and telling context with respect to the contributing causes of our current claimant backlog. The government has greatly contributed to this problem. The concern it shows now is actually pretty late in the game, although we are encouraged by the concern it is showing.

After the election in January 2006, the government, for murky political reasons, stopped most appointments to the IRB and left many vacancies. This was a system that already had many problems, so it is no wonder that over four years later we have an even bigger problem, a problem that could have been prevented. Let us not kid ourselves; change has only been because of a report of the Auditor General. The report said that the system was flawed, was failing claimants and ultimately, it was failing Canadians.

In 2005 when there were more officers, Canada accepted 25,000 refugee claimants living here. For 2010, the minister is proposing to accept only 9,000 refugees in Canada. To fix a backlog that has been created, the government is proposing to use rejection of applications as a means to meet its targets. Simply put, this is a travesty of human rights.

This refugee reform bill is flawed.

The first flaw is the safe countries list which creates two classes of refugees, those with the right to appeal and those without. Where do we find the fairness in that? We should not let this type of inequality exist in a document that demonstrates our human rights system to the world. The safe countries list ignores the reality of things like gender-based discrimination and sexual orientation-based claimants. It is discriminatory. It is likely that many countries we deem as safe will fail a human rights test based on those two categories alone.

Equality rights have been struck from the immigration guide. Changes to the procedure of the refugee claim process should not follow suit.

The safe country rule discriminates from the get-go, and it does not take reality into account. A safe country is not prima facie safe for all of its citizens. The concept that a safe country exists ignores research, social study and first person accounts.

The second major flaw is that the first hearing is not done by people with any independence to the department or minister. Further to this procedural unfairness, which we have gone to great lengths to prevent domestically, is the limitation of access to pre-removal risk assessment within the first year after a refugee claim is denied. The result of this is that most denied claimants will be deported before having access to the risk assessment, as it takes close to two years to have that assessment decision, and this is unacceptable. We cannot have one type of legal or procedural system for Canadians and another for non-Canadians. It is unfair, it is negligent and it is contrary to our human rights codes.

There are several amendments that would make Bill C-11 more suited to the actual needs faced by refugees. The NDP is making proposals that are in the interests of claimants and which respect human rights and procedural fairness.

Those amendments include things like all refugee claimants should have access to the refugee appeal division. We need to remove the provision for the safe countries of origin in keeping with our human rights regime within Canada. Each individual's circumstances are unique and we should respect that. At minimum, the process for determining a safe country of origin should be streamlined and should reflect the realities of people from marginalized communities living in tolerant majorities.

Currently, some claimants can be removed before a PRRA decision is made. This should be stopped and the process should be speeded up from two years to six months. We need to review and provide an independent evaluation of the legislative changes after three years' implementation, and these results should be sent to CIMM and refugee advocates for discussion.

I would like to conclude with a few thoughts. Certainly, New Democrats support efforts to make refugee determinations happen expeditiously, absolutely, but the current plan that has been brought forward is insufficient and we do need those amendments. The plan does not reflect the realities of being a refugee claimant, nor does it adequately reflect that Canada's human rights regime is one of the best in the world, and for a reason: We do not purport to treat people in this country differently just because they are not citizens yet. That is why people want to come here. That is why Canada is seen as a land of equality and freedom.

Our refugee system should be entrenched in those values, the same values that keep me and my colleagues in the House safe every day. We are not a country of double standards or hierarchy and we cannot tolerate it in any of our legislation.

There are flaws in Bill C-11, but I believe we can make this bill better with amendments. I believe we can make it better for the reasons I have outlined, so I look forward to seeing it at committee.

[Jason Kenney, Conservative, Minister of Citizenship]

Mr. Speaker, there were a number of errors in the member's speech.

First, she suggested that the government intends to use rejection of applications for asylum to reduce the backlog. That is ridiculous. The government has no authority to reject applications. It is the independent quasi-judicial IRB that assesses each case on its merits, both under the current system and the proposed reformed one.

The 9,000 figure to which she refers is very simply a projection of how many positive decisions there will be based on the current acceptance rate, which is that 42% of claims are deemed to be in need of Canada's protection. The IRB is funded and staffed to finalize 25,000 cases a year, so we project about 9,000 positive decisions leading to permanent residency landings. It is a question just based on the actual current statistics. There is no government quota for positive protection decisions, and to suggest otherwise reflects a misunderstanding of the system.

Second, the member is mistaken when she suggests that the designation of safe countries would not take into account the issue of whether or not state protection is extended to vulnerable individuals, including people on the grounds of sexual orientation and gender. In fact, we propose that the absence of state protection would be one of the criteria for consideration in the designation process for designated safe countries.

Third, she said that decision makers would not be independent. That is not true. They would be situated at the independent quasi-judicial IRB. The minister would not be hiring them and would not be renewing their terms. They would be hired by the Public Service Commission within the independent IRB, which is precisely the case at the immigration division of the IRB, so it maintains the same degree of total independence.

The member is now proposing that we withdraw the moratorium on pre-removal risk assessment. I believe her critic and everyone agrees, there is almost unanimity on this point, that the PRRA should be replaced by the refugee appeal division. Finally, the bill does include a three-year review, which is what she is calling for.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I thank the minister for clarifying the position on some of what I said.

The minister talked about people being treated differently depending on the country of origin. There is a question of whether it passes the smell test. Some countries are deemed okay and other countries are not. We have to wonder if any nuance will be available for claimants. We have to wonder if any special circumstances are available for consideration.

Refugee determination requires an assessment of each case, not group judgments. I see the minister nodding. If that is the case in this bill, then we welcome that kind of situation, but the way we are reading this, it certainly is not clear.

I thank the minister for his clarification of the numbers, that it is not a quota but a prediction, and I accept that. However, we come back to the 25,000 who were accepted last year and the prediction is only 9,000 for next. We are left wondering what is going on and how this is happening.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I want to put the issue of refugees in context.

My hon. colleague, who gave an excellent speech, talked about overall numbers. In 2005, the year before the Conservative government took office, 35,768 refugees were admitted to this country. There has been a steady decline every year that the government has been in power: 32,492 in 2006, 27,956 in 2007 and 21,860 in 2008.

A number of specialists in the immigration field believe that this reflects a general desire on the part of the government to lower the number of refugees accepted into this country. It is not just the New Democrats saying that. Janet Dench, the executive director of the Canadian Council for Refugees, said:

I think [these numbers] reflect the overall closing of the doors on refugees, and it reflects that priority has increasingly been given to economic immigrants over family class and refugees.

Tom Abel, settlement worker at Toronto-based Romero House, said:

Quite frankly, the Conservatives' intention is to lower the number of refugees coming in this country. This has been the predominant opinion of practitioners in Toronto and I think around the country.

[The Deputy Speaker, Conservative, Andrew Scheer]

I have to stop the member there to allow the member for Halifax 20 seconds to respond.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I want to shed some light on some of the statistics the member quoted. It is not just about the numbers. Those are real people. What happens when those people are denied? I can tell everyone what happens. They come to my office desperate to figure out what they can do next.

Luckily, in Halifax we have an incredibly supportive community. The community has been rallying around a lot of these people trying to figure out a solution. These are real people.