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.

[The Chair, Conservative, David Tilson]

We're going to start again, ladies and gentlemen.

We have with us the Office of the United Nations High Commissioner for Refugees and Mr. Abraham Abraham, its representative in Canada. We also have with us Mr. Michael Casasola, a resettlement officer. One other gentleman will be here soon.

You can make a few comments, sir, about your thoughts on Bill C-11. We'd appreciate hearing them.

Mr. Abraham.

[The Chair, Conservative, David Tilson]

Thank you very much.

I'll start off with one question to you, Mr. Van Kessel. You look like you've been around this game. Can you tell us whether the system that's being proposed under Bill C-11, all or part of it, has been used in other jurisdictions, and if so, what are they—everything, any of the issues that have been raised? I'm sure you're aware of them.

[Jordan Pachciarz Cohen, Settlement Worker, Mennonite New Life Centre of Toronto]

Thank you.

My name is Jordan Pachciarz Cohen and I am a settlement counsellor at the Mennonite New Life Centre. I'm also a law clerk. I work with a lawyer in Toronto preparing personal information forms for people's refugee claims.

First, thank you, Chairman. The Mennonite New Life Centre would like to thank the Standing Committee on Citizenship and Immigration for taking the time for community consultations on refugee reform. We trust that the following recommendations will help inform your decision-making and amendments to this important piece of legislation in order to ensure that protection continues to be the priority in a fair and efficient refugee determination system.

I think we all share a common concern to have a fast, efficient, and fair system. However, there are several concerns that we do have with Bill C-11, and because of our limited time, this restricts us to only speak to a few of them.

Our first concern is with the designation of “safe” countries and the lack of access to an appeal for the designated safe countries. We believe this threatens to politicize the refugee system and compromise the independence of the Immigration and Refugee Board. We believe that individual assessment on the merits of each case is required without government intervention and without influence from authorities making designation of safe countries based on any political system. Also, it's important to note that claims from countries that are commonly thought of as safe are those that would most require an appeal process. This is because there are complicated issues of fact and law, such as the availability of state protection in countries that are generally thought of as safe.

One of the other concerns is the access to humanitarian and compassionate applications, and people having only 12 months after a negative decision to present a humanitarian and compassionate application on these humanitarian considerations. First, I would like to mention that many claims are not refused because of lack of credibility or people who are trying to abuse the system, but very many claims are refused because of the narrow refugee definition and are refused based on state protection, access to state protection or internal flight alternatives. The actual immigration refugee division or the refugee division is making a determination that people do face risk but not actually persecution, so risk should be able to be assessed at the humanitarian and compassionate level.

I want to give you some examples of certain situations that may be encountered by people who wouldn't have access to H and C considerations but who should. One is if a family arrives in Canada and makes a refugee claim, there's one member of the family who has dual citizenship because he was born in a different country from the country of persecution, but has never actually lived in that country. Another is if the entire family arrives in Canada, makes a refugee claim, are accepted, but there's one family member who is over 21 who is not able to be included in the permanent residence application as a protected person, and this person has no other family in their country of dual citizenship; they have no connection to that country whatsoever, and they would be sent to a place where they have nobody and have no idea of what the situation is there and they would be separated from their family.

Another situation could be a person who has a child with a permanent resident or Canadian citizen, and if that person is deported from Canada there should be humanitarian concerns for the best interests of the child to have both parents remain in Canada to raise that child.

There are many other different circumstances that could arise; those are just two examples.

I'm going to move on to the timelines of Bill C-11 and the eight-day interview. We fear that an interview with a public servant after eight days of making a claim will lead to poor decisions. How can one expect to gather accurate information when questions asked are not in a calming and trusting environment?

Refugee claimants require good advice in order to present their claim, and they're unaware of the laws and procedures and what information is actually necessary to mention and what is important to their claim. Very often they're given advice prior to arriving in Canada by unscrupulous individuals, and without receiving legal advice, they may present information that is incorrect and inaccurate.

In my work in meeting with people to present their claims and to put their personal information form into narrative form, often claimants believe they cannot mention events that occurred if they don't have the physical evidence to back them up. So they leave that information out because they're unaware that their oral testimony is of evidence and that's why their credibility is being evaluated at their IRB hearing.

There's fear of public officials. Often the agents of persecution in their home country are public officials, and to present in an environment where there's a public servant who's interviewing them, there's no building of trust, no time, and not a safe environment in which to present their case. It's not enough time to get psychological reports in place and put together accurate information regarding their claim.

I think Maria Eva is an example of someone who I feel would probably have had a lot of difficulty being accepted as a refugee with the proposed Bill C-11, the current refugee reform, and would probably not have been accepted without being given the necessary time to prepare her case. I'm going to let her present briefly on her situation.

[Olivia Chow, NDP, Trinity—Spadina, ON]

At the latest. That would be the time when we do clause-by-clause consideration of Bill C-11.

[The Chair, Conservative, David Tilson]

We have two more things to do, committee members, before we adjourn. I'll keep talking in public until someone tells me to go in camera, because I don't think it will take long.

You have before you two budgets. The larger amount is the expenses for the video conferencing for Bill C-11, and that's estimated to the end. The smaller amount is the expenses with respect to the Haiti issue.

Everybody's looking at me as though you don't know what I'm talking about. Do you understand?

I'd like a motion to approve these budgets and authorize that the amounts be paid. Ms. Chow and Mr. Karygiannis.

(Motion agreed to [See Minutes of Proceedings])

[William Bauer]

Okay.

I don't have enough time, really, to deal with all aspects of Bill C-11, so I'll try to concentrate on the aspects that have produced the most attention.

The designated safe country of origin is one of the more controversial aspects. It's been systematically attacked by I think every lobby group that's appeared before you, and indeed it is an extremely sensitive subject for some people.

Most of the EU countries utilize some form of this, which is simply an attempt to avoid clogging the whole system with manifestly unfounded or frivolous claims. The criteria for designating safe countries of origin set out by the EU council are very precise, and although those applied by individual countries may vary in detail and procedures, the fundamental criteria must be met.

There are many sources for determining SCOs, but I would mention two that are used all the time. The United States Department of State human rights reports are issued every year on every country in the world, including Canada. They are generally considered quite unbiased and objective, and they have been used for many years by the IRB and by counsel. The British Home Office also maintains a country of origin information service.

I don't think our government, in its proposal, is planning to have a very long list, but I agree very strongly that they should have a procedure for establishing the list, if indeed that's the way they go, that would produce a list that's accurate and objective.

One criticism that I've heard is that a system would be discriminatory and that each claim must be individually assessed. Even now, the IRB is using discriminatory procedures in its national streamlining directions, which allow for determination of claims from about 20 different countries without a hearing at all, with just a simple interview. I've heard no complaint from any organization about this, probably because it almost automatically produces a positive decision.

The original legislation also provided for a list of safe third countries, which envisaged rejection of claimants who on the way to Canada pass through a country that had a respectable refugee determination system, human rights, and all that. The theory was that anybody fleeing persecution would apply for asylum at the first place they arrived at, rather than shopping around for something they liked a little better. This received quite a bit of pressure, similar to what the SCO is being subjected to now, and in the end, it has never been promulgated, and I presume it never will be. There's never the political will to put this through.

On the question of timelines, we've talked about the refugee claimant talking to a civil servant for about half an hour within eight days of arrival. I don't see anything wrong with this, and the criticism strikes me as being very disingenuous. As it stands currently, he meets an immigration officer and has a port-of-entry interview, which is held under the worst conditions, when everybody's tired, when the noise is about, and with practically no satisfactory description of what was actually said. The eight-day period would enable a claimant to describe the case more thoroughly in a much better environment and then be set for a hearing of his claim in 60 days. I doubt if the 60-day target will be met, but it's a desirable objective, and it certainly provides adequate time for preparation.

Regarding the staffing of the IRB, I'm all in favour of staffing it with public servants. I've heard public servants criticized by many lobbying groups as being incapable of exercising independent judgment, as being anti-immigration, and as being generally inferior to almost any other pool of talent among the Canadian population. The criticism has arisen again during the discussion of Bill C-11, and I find all this criticism shoddy, offensive, and inaccurate.

I've worked with immigration officers for 40 years in various countries of the world, and I found them well trained, sympathetic, and fair, sometimes in the most difficult conditions you could imagine. They carried out the law of Canada; they didn't carry out ministers' wishes. I think that should be understood. That's what we're all trying to do—carry out Canadian law as passed by Parliament.

The worst bias and interference I ever encountered was from an order in council appointee to the IRB who had a very strong bias against any negative decisions. I've always argued against patronage in the IRB, and I've watched the attempts in the past few years to eliminate it or at least dilute it, and I have some hope that these attempts will be fruitful.

On the appeal division, the original reason for putting it forward was to compensate—

[Ezat Mossallanejad, Policy Analyst and Researcher, Canadian Centre for Victims of Torture]

Thank you very much.

I speak on behalf of a front-line agency helping survivors of torture, war, genocide, and crimes against humanity. I also speak as a front-line worker at the centre and as a former refugee who has gone through the process.

For 33 years the Canadian Centre for Victims of Torture has served more than 16,000 survivors from 130 countries. I am going to share with you some of our concerns.

Our first concern is about the provision of the interview at eight days. Based on our experience, 50% of refugee claimants who come to Canada have experienced war or torture. When they come here, they are highly traumatized. Most of the time, upon their arrival they are unable to disclose everything they have endured. This is especially true for survivors of rape and other types of gender-related torture.

Second, we submit that the provision of 60 days is neither fair nor feasible. Torture victims often require medical or psychological assessment about torture. Medical assessment sometimes take us two months because they need X-rays, MRIs, and so many things. Also, it sometimes takes me two months to get an appointment from a psychologist or a psychiatrist to assess the torture of a person who has come from a tyrannical regime. It is not at all feasible. How can we expect them to submit everything?

Also, survivors of torture and other international crimes develop a sense of withdrawal in regard to sharing their fearful experiences. This is true specifically about other types of gender-related persecution. Right now, we have the pre-removal risk assessment. We have H and C. We have some kinds of remedies for them, but I strongly believe that we should continue with H and C. Because if you deny them H and C for one year, it is no longer humanitarian; it is no longer H and C.

Also, there is the issue of the problem of safe countries, because we have certain survivors--from any country--who go through torture due to their sexual orientation. It is sometimes due to gender persecution and some types of harassment. I don't think we should just say that they have come from a safe country and they are being denied access to the refugee determination system.

Also, another issue of concern is the future of the Immigration and Refugee Board. Right now, we have a quasi-judicial system. On the question of civil servants, we don't know what will happen under the new bill. Experience from other countries has shown that some of these civil servants are not competent. They don't know, and they go with bureaucratic considerations.

Another issue is the principle of non-refoulement to torture. Under article 3 of the convention against torture, article 7 of the Canadian Charter of Rights and Freedoms, and article 12 of the charter, we cannot send anybody back to torture to any country. That is also based on the ruling of the Supreme Court of Canada in the year 2002 in the Suresh case.

I'm afraid that implementation of Bill C-11 would lead to keeping new people in limbo, because definitely legislation like that cannot overrule Canadian international obligations as rendered in conventions against torture or Canadian constitutional provisions. What will happen if they have hundreds of rejections? Will we keep them in limbo? We cannot remove them. Limbo is also a technique of torture, and there are many tyrannical governments. It has also already led to the re-traumatization of our clients. I submit that the issue of refoulement to torture would also traumatize our present clients. They feel that Canada is not taking care of this important issue, and it might lead to re-traumatization.

I submit that this Bill C-11, if it becomes law, would impose new costs to the Canadian taxpayers for enforcement, removal, and detention, all those things.

Finally, I submit that since 1976, the Immigration Act has gone through amendments 52 times and it has not improved the system.

There is one main defect that I want to bring to your attention as respected legislators. It's the issue of linking victims' immigration and human rights and the issue of the need for an ombudsperson responsible to Parliament to hear grievances about the implementation of refugee acts.

Thank you very much.

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen.

This is the Standing Committee on Citizenship and Immigration, meeting number 17, on Tuesday, May 25, 2010. The orders of the day are pursuant to the order of reference of Thursday, April 29, 2010, Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.

We have three witnesses today, three guests. One of them is coming via teleconference from St. John's, and we're having problems hooking that up, but there's no reason we can't start with the other witnesses and hope that it will happen. So I will introduce our witnesses.

I want to welcome you to the immigration committee to study this bill and hear your observations and comments. We have the Table de concertation des organismes au service des personnes réfugiées et immigrantes, with Stephan Reichhold, who is the director, and Richard Goldman, who is the committee coordinator to aid refugees. As well, we have Action Réfugiés Montréal, Glynis Williams, who is the director, and Maude Côté, who is the program coordinator.

Each group has up to seven minutes to make a presentation. Thank you for coming.

We'll start with you, Mr. Reichhold.

[Peter Partington]

Well, in some cases, as I mentioned, Mr. Dykstra, such as the crisis we had a few years ago, we have reacted instinctively. We felt it was our obligation to do it. We spent the money that was necessary first, way above and beyond what the normal costs would be. And we went to the provincial and federal governments after the fact. But our taxpayers were there first, and we're pleased that we did that.

When we talk about the cost, as I indicated, we bear the cost proudly. We see the value of having immigrants, whether they come in as landed immigrants or refugee claimants, who settle in Niagara. And it seems to me, under this Bill C-11--we've done a quick estimate--to the extent that the number of days before the first interview would be reduced from the average of 14 or 15 down to eight, there would probably be a very modest cost savings, about $22,000, to the region. With respect to savings for social service costs through Ontario Works, they would probably be in the neighbourhood of $125,000 to $150,000.

But I want to underline that it's not the cost that matters but rather the importance to the people who are coming here to claim permanent status as residents of Canada. That says everything about their ability to start fresh in a new land quickly, to move ahead, to maintain their self-esteem, and to look after themselves the way they should. So even though I talk about the savings there could be, this goes directly to assisting immigrants, in this case refugees, in a much better way than what currently exists.

[Peter Partington]

Yes, and that's an excellent point. I made that earlier on. One of the things Bill C-11 will do is fast-track these claimants so they can start work earlier, can achieve their goals, and can get that sense of self-worth, which is being postponed under the current system.

Certainly in Niagara, with our Ontario Works program and social services, and having this tremendous tourism industry, we have people who are constantly reaching out to industry to find jobs for people on Ontario Works. One of the things we're pleased with--which is a little bit unique--is that the two casinos in Niagara tend to be a tremendous training ground and a step into a more permanent job for many people coming off Ontario Works in Niagara. So we're constantly reminded, and we do have a very strong part of our social services department working on that.

[Ted Salci, Mayor, City of Niagara Falls]

Good afternoon, Mr. Chairman and members of the committee.

I'd like to begin by saying that aggressive refugee reforms are certainly needed, and we see this need in our community every day. I can tell you that we certainly get people contacting our office and the local offices of our federal members for assistance with the immigration process, because it is lengthy and it is cumbersome. And some applicants are blatantly abusing the system.

Being a border community, we see people trying to enter our country to work, to live under our democratic laws, and for the most part to become Canadian citizens living in our cities. We also see first-hand the great efforts made by the Canada Border Services Agency to protect and patrol our borders, as many abuse the opportunity to come to Canada and attempt to take advantage of the social systems we have in place here.

Speaking from the perspective of a border community, as the mayor I can tell you that we rely on the free and easy travel of people into and out of our country. We recognize the great importance of allowing people into our country to grow our communities, to attract business and tourism, and to support our population.

We certainly appreciate the sensitivity of this subject. We know the crucial role immigrants play in building our communities.

I see the proposed amendments to Bill C-11 as a step in the right direction. To support those coming in and to tighten up the rules for those who currently aim to take advantage, we need to speed up the process for successful claimants so that people can get on with their lives in Canada. We need to weed out those who have untoward intentions and get them back to their countries swiftly and effectively. This legislative reform is certainly imperative. It's an opportunity to improve the system. The result will be that it will quickly become fairer for those who are negotiating their claims, as they will be taken care of in an expeditious way. And it will be fairer to the rest of Canadians, who pay for the social support systems that refugees without income rely upon.

The bill proposes to reduce the length of time a claim takes from start to finish. This will translate into a huge relief of the burden on our taxpayers. Instead of it taking an average of four and a half years for an unsuccessful claimant to go through our system and be removed from our country, under the revised law a claim would be processed in under a year. This translates, of course, into substantial savings.

The quick removal of failed claimants from the country would help discourage individuals from using the asylum system to try to jump the immigration queue to enter Canada. It would mean that unsuccessful candidates would not be supported by our social systems any longer than necessary. In turn, this would deter bogus claimants.

It's important to look at the savings that would result. It's estimated that each failed asylum case currently costs taxpayers approximately $50,000 in social service and health costs. With a faster timeframe for cases, this cost would be reduced to approximately $29,000. The savings for our taxpayers would certainly be substantial.

It will also ensure that valid claims will be processed in a timely manner so that successful refugees can get on with starting their lives in our country. They can get established, get gainful long-term employment, and start contributing to society in a meaningful way much sooner.

I support the faster process that will see claimants get their first interview within eight days of arriving in our country. Under the amended legislation, the first hearing will be 60 days after the interview. This is certainly a positive move. It is a distinct improvement over the current average of 19 months for claims to be heard by the IRB. Most importantly, the people who need help and protection will get it more quickly.

Currently, the U.K., Ireland, France, Germany, Greece, the Netherlands, Norway, Switzerland, Denmark, and other countries have a “safe country of origin” policy. By engaging in a similar system, we will be saving our taxpayers money and time. We will also be allowing those from unsafe countries an appeal process. Implementing an appeal process will allow new information to be brought forward by claimants from unsafe countries. All eligible asylum claimants, including those from safe countries, of course, will continue to have a hearing by the Refugee Protection Division.

With its commitment to increase the annual refugee target by 2,500 people, the new legislation will allow the government to help more refugees resettle in Canada.

Another benefit is that the government will be able to increase resettlement assistance program funding to $54 million, which will be the first increase we've seen in more than ten years.

Ultimately, I see the bill as addressing a need. It will help the people who are going through the system now. It will help those who need our protection to get it quickly and efficiently. And it will weed out those who are abusing the system and get them back to their countries without the extensive burden on our taxpayers that exists now.

Thank you very much.

[Peter Partington, Chairman, Niagara Region]

Mr. Chairman, perhaps I'll just take two to three minutes initially to talk about, first, the current process, which of course takes up to two years to complete and certainly has an impact on the ability of individual refugee claimants and families to establish their long-term goals and plans, six months to receive a work permit, and certainly an increased reliance on Ontario Works.

Ontario Works is delivered by the Region of Niagara, and it creates a negative stereotype for immigrants, being seen as placing stress on the taxpayer.

In the region, we support Bill C-11. We see it's intended to provide a smoother, faster process. Certainly the initial screening by the Immigration and Refugee Board will be held in Toronto within eight days of arriving and the whole process is to be completed within six months. So we see that as positive steps forward in the process.

We appreciate the contribution that immigrants make to the Region of Niagara. We process through the Peace Bridge entry in the region 600 refugee claimants a month. About 13% of them stay in Niagara, and the rest move on to other municipalities.

We believe the proposed bill will certainly make it much better for refugee claimants, the legitimate refugee claimants, in terms of settling; and of course it will help the Region of Niagara because it will reduce, to some extent, our hostel bed capacity. Currently, 15% of our beds are taken up by refugee claimants. As well, it will go some way to removing the burden on our taxpayers through the Ontario Works social assistance requirements. But above all, I think it is helpful to the refugee claimants.

Those are my comments.

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

Very well.

I would now like to come back to our representatives from the Centre des femmes de Verdun. In Bill C-11, there is a provision prohibiting a person who originally applied for refugee status from withdrawing, at some point, this application and to instead apply under humanitarian and compassionate considerations. As soon as you have filed a claim for refugee status, it is final, and it is no longer possible to make an application under humanitarian and compassionate grounds. We are in a context in which the government is claiming that there are organized groups that use people and encourage them to come to Canada to file bogus refugee claims. Do you not however find it somewhat counterproductive to tell someone who has applied for refugee protection that it is not the proper route and that he or she should rather apply for admission for humanitarian and compassionate grounds? Is it not rather counterproductive to prevent the individual from doing so and to tell him or her that the only path allowable is to go all the way with the refugee claim, even if it is not the right path?

[Geraldine Sadoway, Staff Lawyer, Immigration and Refugee Group, Parkdale Community Legal Services]

Thank you. My name is Geraldine Sadoway, and Rathika Vasavithasan is with me.

I'm a staff lawyer at Parkdale Community Legal Services. It is a 40-year-old clinic in Toronto that has produced some of the major lights in immigration and refugee law. In particular, James Hathaway was once one of our students at Parkdale Community Legal Services.

Rathika is a law student, but prior to that she was involved in working with immigrant communities. She's also a representative of the Tamil community that has been displaced. Her family was part of the government-selected refugee program, but she is part of a community that includes many people who came to Canada as refugees and claimed refugee status here.

I'm representing Parkdale, but I'm also representing the many workers in the community legal clinics in Ontario and other parts of the country who work on behalf of perhaps the most vulnerable immigrants and refugees who fall through the cracks of our current system. We deal with people who are often very deeply traumatized; people who have mental health conditions; women, children, elderly people; and people who have survived torture and other types of other terrible, traumatic experiences.

Law students in our program, such as Rathika, usually come with a very rich experience working with refugees and immigrants.

We're presenting today on the changes to section 25, the humanitarian and compassionate section of the act. Those are proposed subsections 25(1.1), 25(1.2), and 25(1.3). We are arguing that they should simply be deleted from the bill. These humanitarian sections will drastically affect the communities we serve.

They propose that a person will have to choose between making a refugee claim or filing a humanitarian application. In other words, if you make a refugee claim, you're not eligible to file a humanitarian application while your refugee claim is pending, and if refused, for one year after.

Moreover, proposed subsection 25(1.3) of Bill C-11 provides that if you do make a refugee claim, it is refused, and you manage to make a humanitarian application after one year, you can't base your humanitarian application on any of the dangers or risks you raised in your refugee claim. Furthermore, this section says that no hardship or risk factors can be raised at all in humanitarian applications if those same factors could have been the basis of a refugee claim.

This is the most dramatic limitation of ministerial power we've had since at least the 1950s. That's the act I can remember having reviewed a long time ago. But certainly in the 1977 and subsequent acts, we always had ministerial discretion to consider humanitarian and compassionate grounds, and that is now going to exclude factors that could be the basis of a refugee claim.

First of all, there's no efficiency in these changes, because with the current process we consider humanitarian claims in a different stream. They are dealt with by immigration officers, not by the refugee board. There's a paper application, not an in-person application. And the processing of such a claim does not stop removal. So there's no benefit. There's no efficiency in saying we're going to get rid of the humanitarian application.

If you have a pending humanitarian claim and you've been refused refugee status, you can still be removed from Canada. I know that; as a lawyer I've dealt with those cases.

You can only stop removal if either the immigration officer agrees to defer removal or you get a Federal Court judge to recognize that you would suffer irreparable harm if you are removed. We have done that as well.

What we're doing is setting out an impossibly difficult situation for the person coming to Canada who has left a problem in their home country. It will be very difficult to advise those people.

I'd like Rathika to hold up now for the camera a little image we made, a little Venn diagram. What you have is a large grey area of what constitutes a well-founded fear of persecution, which is the test for convention refugee, and what does not meet that stringent test but does constitute very serious hardship. So getting accepted as a refugee results in much stronger protection—non-refoulement. You can't be returned to the country where you fear persecution.

Accepted refugees and their family members are granted exemptions from certain inadmissibilities, such as financial and medical. But deciding whether someone should be found to be a refugee is not black and white. It's not an issue where you're a refugee or you're not a refugee. There are difficult decisions to be made, and that grey area is where a lot of the cases would fall.

Some cases that would be accepted as refugees by one board member would not be accepted by another, but they could be accepted on humanitarian grounds. We've seen many examples of this. I've set out examples in our brief of people who even the refugee board said at the hearing that what they're facing is very severe discrimination and it's a terrible experience they've lived through, and that's not enough to find them to be a refugee, but they have a strong humanitarian case. We have taken those cases and filed a humanitarian application after the refused refugee claim and quoted from the board.

The board can't decide on a humanitarian case. They can't say, okay, but I'm going to accept you on humanitarian grounds. But the immigration officer can look at what the board saw and that they found the person credible and accept them. Now we're just going to throw that away. We're going to say that all those people who have very strong humanitarian cases will either win the refugee claim or they're gone. You can't base your humanitarian case on the very factors the board said were strong humanitarian cases.

[Catherine Dagenais, Lawyer, Research and Legislative Services, Barreau du Québec]

Mr. Chairman, ladies and gentlemen, first I want to thank you for your invitation. My name is Catherine Dagenais, and I am a lawyer with the research and legislation service of the Barreau du Québec. The Barreau du Québec has slightly more than 23,000 members. It main mandate is to protect the public. It carries out that mandate by ensuring, in particular, compliance with the rule of law, the continued separation of powers, the promotion of equality for everyone before the law and protecting the often precarious balance between citizens' rights and the powers of the state.

As a lawyer in the research and legislation service of the Barreau du Québec, I coordinate the business of the advisory committee on immigration and citizenship law of the Barreau du Québec, which consists of some 10 immigration and citizenship law practitioners. The committee analyses various immigration issues and has been given the mandate to examine Bill C-11.

I am here today with Ms. France Houle, member of the advisory committee on immigration and citizenship law of the Barreau du Québec. Ms. Houle was admitted to the Barreau du Québec in 1989. She is a professor at the law faculty of the Université de Montréal, where she teaches administrative and immigration law.

The Barreau du Québec's comments today concern Bill C-11. I will briefly outline the Barreau du Québec's position, which was developed in our letter of May 7. My colleague will be able to add any relevant information and answer your questions.

The Barreau du Québec is pleased with the significant effort that is being made in an attempt to find a balance between faster and equitable treatment of refugees. It is pleased with the implementation of an appeal mechanism for refugees. The Barreau du Québec had been calling for a genuine appeal mechanism for some time. This Refugee Appeal Division will have the advantage of developing expertise and a body of case law. However, some factors must be reviewed in order to prevent harmful effects on a vulnerable population.

The Barreau du Québec is particularly concerned about certain time periods proposed in this bill. The Barreau du Québec therefore proposes four weeks instead of eight days for the information gathering process. It also suggests a period of four months before the first hearing in the Refugee Protection Division. Refugees must be allowed time to find competent lawyers, to obtain evidence from their country of origin and to approach legal aid.

A competent lawyer handling the case will facilitate the processing of that case. These lawyers need time to prepare, to provide good advice and to represent their clients. Adequate preparation is therefore necessary from the outset. In addition, if there are deficiencies in the first hearing, the entire system risks going off the rails. The IRB's resources must therefore be cautiously used, avoiding numerous postponements.

According to the bill, first-level decisions would be made by officials. The Barreau du Quebec believes that the positions should be offered to everyone, both members of the public and people working in the various departments. Care must also be taken to ensure the independence and impartiality of the proposed first-line decision-makers.

Another major concern for the Barreau du Québec is the designated countries of origin and the possibility that the minister may designate countries whose nationals would not have access to appeal. The country-related criterion is shocking with regard to access to justice and equality for everyone before the law. The Barreau du Québec is opposed to this two-level appeal system.

Furthermore, if this solution must be considered, we must at the very least ensure that there are guarantees and a fair and transparent process for designating those countries. The committee must include independent experts with considerable expertise in human rights and humanitarian law, as well as public representatives.

In addition, and this point is important, the criteria shaping this process of designating safe countries should be clearly set out in a statutory instrument, not by order or regulation. These criteria should also be subject to comment.

As regards the appeal mechanism, the Barreau du Québec notes that appointments to the Refugee Appeal Division would be made by cabinet. The Barreau du Québec repeats that all political appointments must be avoided and that emphasis should be on competence in order for the proposed reform to work. In its letter, it suggests an appointment process that we invite you to consider. I would now ask Ms. Houle to talk about the suggested process.