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.

[Andrew Telegdi, Former Parliamentary Secretary, Former Chair and Vice-Chair of the Standing Committee on Citizenship and Immigration, As an Individual]

Thank you very much, Mr. Chair. I'm very pleased to be here.

Let me say that some things don't change. I used to have all sorts of problems with the parliamentary secretary when I chaired the committee, but we worked it out.

First and foremost, I think it's important for committee members to know that I'm a refugee from the class of '57 following the Hungarian revolution and was one of approximately 40,000 people who got asylum in Canada after the uprising. So this is an issue that is close to my heart.

When I dealt with issues related to immigration and citizenship, I always operated in a pretty non-partisan fashion. I disagreed with my government at one point and I resigned as parliamentary secretary. I served as an associate member of the committee for a number of years because I would not be put back on as a member. Then, when the situation changed, I got elected as chair and, subsequently, vice-chair.

It is an issue that I'm very much interested in. As I said, when I was chair of the committee, I challenged the committee members to operate in a non-partisan fashion and I defended the committee decisions to government and advocated for them.

Looking at the changes, I'm really glad that Mr. Girard is here because he talks about coming back 25 years after he helped draft the original IRB system and about identifying many problems.

Mr. Chair and members of committee, I hope you are not going to be coming back after 25 years have gone by and having somebody else come back and say that the problems haven't been solved.

One of the things that concerns me most about Bill C-11 is the proposed timeline. I hear you talking about going to clause-by-clause and that causes me a great deal of concern, because I think issues such as Bill C-11 and its implications should be very transparent, and input should be sought. I can't understand why you as a committee would not want to take your time to make sure you get it right, because we don't want to have Mr. Girard's experience repeated.

In terms of the bill itself, I just want to give you one example of a case I dealt with when I was parliamentary secretary. It was the case of a young woman from the former state of Yugoslavia who felt that her refugee claim was turned down because the board member of the IRB did not believe there was collusion among the government, the media, and the police in the former state of Yugoslavia.

She was set for deportation and was going to be sent out of the country—this was back in 2000—on a Monday afternoon. She was going to arrive in Belgrade at 10 the next morning and NATO was scheduled to start bombing at noon. How ridiculous a situation can you have? Certainly, incompetence of board members existed at the time, and changes have been made to ensure greater competence.

Another issue I'm very cognizant of is the fact that we fought to get the board appointment process right. Back in 2006, we had a backlog of 20,000 claimants, and now the backlog is over 60,000 claimants. What happened was that the vacancies on the board were not filled up in a timely fashion, which resulted in growth in the backlog. In a lot of ways, we had solved much of the problem by getting the backlog down to 20,000, and it was going to go down further.

Also, the changes to the system mandated that we have a refugee appeal division, and that was not put in place. But it was on the verge of being put in place once the backlog got down to 20,000.

My recommendation to those of you on the committee--and I make this as an individual and I make it in a very non-partisan fashion--is to take the time to get this right. Make sure that the stakeholders and Canadians have a genuine opportunity to have input into this legislation, because I think it's legislation that Canada, in its past history, can be very proud of.

We want to make sure of that going forward. The fine aims of the legislation, such as speeding up the system, are laudable, because the quicker we can bring certainty to an individual, the better off we all are, including the individual.

[James Kafieh]

The Canadian Arab Federation is the national organization serving Arab Canadians. Since 1967, we've advocated on a wide range of topics. However, our 500,000 Arab Canadians have a special interest in Bill C-11.

We come from a part of the world that is generating a lot of refugees and we have a special interest in this legislation. There are six areas that I want to touch on with regard to the specific concerns we have about Bill C-11.

We would point out that not all aspects of the proposed changes are negative. For example, the Canadian Arab Federation applauds the inclusion of provisions for appeals on the basis of merit and also more timely hearings for refugees.

However, there are also very disturbing changes embedded in the legislation. As the lives of refugees are at stake, these aspects require special attention today.

Of the six points to touch on, the first is with regard to the interview at the Immigration and Refugee Board. A fair and expeditious process for assessing the refugee claimants is a common goal; however, “fair” and “expeditious” are not alternative choices.

The requirement for refugee claimants to give details of their claim at an information gathering interview within eight days of a claim being referred to the Immigration and Refugee Board is insufficient and prejudicial to legitimate claimants.

Refugees undergo traumatic and gruelling processes to arrive in Canada. They will understandably require more time than is contemplated in the legislation just to recover from their odyssey. In addition, they legitimately need to consult legal counsel prior to presenting their narrative. Legal aid certificates often require longer than the eight-day period allotted just to be issued.

The initial interview requirement undermines due process, so we say that the initial interview should be deleted from the legislation.

The second point is with regard to the hearing date scheduling. The present scheduling of hearings is profoundly problematic. Refugee claimants should not have to wait years to have their claim adjudicated; however, many refugees will necessarily require more than the 60 days allotted under the legislated to prepare their case.

Evidence of persecution may be difficult to obtain from dysfunctional parts of the world. States that generate larger numbers of refugees are often the very states that are most oppressive and chaotic. In addition, even evidence gathered in Canada, such as medical or psychological assessments and reports, may take much longer to be produced than the 60 days being contemplated in the legislation.

The right to an expeditious hearing should be clearly stated in the legislation. However, hearings should generally be scheduled on the basis of when they are ready to proceed, with long-term time limits setting out maximum time limits.

The third item is with regard to the first instance decision-makers. The move away from an Immigration and Refugee Board that is uploaded with political appointees is a welcome measure; however, limiting the decision-makers of first instance to civil servants will undermine the objectivity of the refugee process. A process that handles appointments to the Immigration and Refugee Board without political interference or partisan consideration would be a welcome measure. Decision-makers should be appointed for fixed terms and qualified candidates, both from inside and from outside the civil service, should be considered for this role.

Number four is with regard to designated countries of origin. Provisions under the legislation that would enable the minister to designate countries of origin would unnecessarily politicize and undermine the integrity of the refugee determination process. Such determinations also violate international law by discriminating on the basis of country of origin.

[Alexandra Pierre, Community Organizer, Responsible for anti-racism and discrimination issues, Fédération des femmes du Québec]

Good afternoon. Thank you for receiving us and allowing us to make this presentation.

The Fédération des femmes du Québec, la Coalition des familles homoparentales, the Concertation des luttes contre l'exploitation sexuelle, or CLES, the Regroupement québécois des Centres d'aide et de lutte contre les agressions à caractère sexuel, or RQCALACS, and the Table des groupes de femmes de Montréal all work to promote and defend women's interests and for the recognition of lesbian, gay, bisexual and transgender people, LGBT people.

We support the objective of a faster refugee determination system, to the extent that speed does not jeopardize refugees' fundamental rights, and we welcome the introduction of an appeal division under Bill C-11. Despite this progress, we wish to express our serious concern about the rest of the bill.

As a result of the proposed amendments, certain asylum applicants will not have access to the appeal division as a result of their nationality and origin. The introduction of the term “designated country” or “safe country” violates the fundamental principles of the UN Convention relating to the Status of Refugees and the Canadian Charter of Rights and Freedoms, which clearly establish the right to equality.

Domestic abuse, crimes of honour, genital mutilation, rape and commercial sexual exploitation are all forms of violence or persecution suffered almost exclusively by women. The women from countries that might be characterized as safe are not protected from these violations of their rights. In some countries, discrimination and mistreatment are open, even legal, whereas in others, they are more concealed.

I'm going to tell you about the case of a woman whom the signatory groups to this brief have supported. That woman from Honduras was detained in an apartment by a criminal gang that accused her friend of being a police informer. In that woman's presence, the friend in question was mutilated and then decapitated. The woman was subsequently raped by the members of the criminal gang. She then had to leave her husband behind and seek asylum in Canada. She said that, since the police was corrupt, she could not inform on those police officers because otherwise she would be dead.

At her IRB hearing, the panel found that, based on the national documentation binder, Honduras was a country that cracked down on criminal gangs and enforced laws against such crimes. In spite of everything, however, the government of Honduras is still incapable of eradicating this type of sexual violence, which is quite common.

[Raphael Girard]

There is no protection issue for citizens in the EU. They have the right of mobility among 27 developed countries and they have individual protections by the European Court of Human Rights.

So what do I recommend for Bill C-11?

First of all, we need to be more courageous in limiting access, starting with citizens of the EU.

Second, we need to make the interpretation of the convention used by the public servants who preside at a hearing of first instance more constructive and closer to that used by other countries.

Third, we need to enhance our efforts to sign safe third country agreements with other countries through which our refugee claim load currently passes. Otherwise, we'll continue this schizophrenic policy we now have, where we have the most open system in the world, but we also have a very active cadre of people in foreign airports interdicting passengers so they can't come here and use it.

[Raphael Girard, As an Individual]

Thank you, Mr. Chairman.

I'll try to get through this in as short a time as possible, but I warn you that my presentation is meaty and full of precise technical terms. I've given a copy of my text to the clerk so that the interpreters can follow.

Mr. Chairman and ladies and gentlemen, 25 years ago, I led the task force that produced the existing refugee determination system for Canada. It was the first time we embedded the right to claim refugee status in Canadian law.

I can also say I don't envy the people who are going through the reform. What strikes me most about the debate surrounding Bill C-11is how little the objectives and the problems have changed, despite more than 20 years of experience with the phenomenon of refugee claims in Canada.

Looking back to 1985, the Singh decision forced the department to change the ad hoc processes it had for dealing with refugee appeals against removal. The backlog created at that time was decades long. Reform was essential.

Flora MacDonald mandated me to form a task force, and I must say that the objectives we had then and the objectives for Bill C-11 today are virtually identical. Everyone wants a rapid and fair decision-making process, early recognition of valid claims, and prompt removal of failed claimants to discourage frivolous claims by those who would exploit the determination system for other purposes.

Despite our best efforts, the system we delivered in 1989 failed. It was dysfunctional from day one. There was a conflict between the design and the law.

The design concept was based on the premise, a very important premise, that an independent tribunal should be available to those, and only those, whom Canada would have an obligation to protect if they met the definition of “convention refugee”. We rejected the idea that Canada had an obligation to facilitate claims by those seeking to come to Canada from other signatory countries such as the United States, Germany, and other western European countries whose performance in protecting refugees showed them to be in good standing.

Although provisions to achieve this were present in the bill that became law in 1989, the essential restraints on access to the independent tribunal were not enacted by the government, and the system was therefore left vulnerable to overload, despite the enormous budget of $100 million that was made available to the IRB in its first year. To compound this issue, the IRB adopted an interpretation of the convention that was and remains broader than that used in any other signatory country, leading to an acceptance rate of claims that approached and sometimes exceeded 50%, which in those days was easily double that of the next most generous country.

Since then, the system has been chronically backlogged. As a result, there have been episodes of wholesale abuse by bogus claimants.

Bill C-11 has some interesting features to expedite the process and limit appeals, but it fails to come to grips with the underlying problems that plague the existing system. The bill replaces order in council nominees with public servants at the hearing of first instance, which will make the appointment process simpler; however, the hearing format with counsel remains the same.

An additional element has been tacked on at the front end, which you talked about earlier, and the de novo is available at the back end on appeal from a refusal at the hearing of first instance, which can include a second oral hearing in some cases where credibility is an issue.

These three steps replace the single encounter the claimant now has in the current system. The Bill C-11 reforms risk making the overall process more complex, not less.

It's difficult to believe that a more complex system can be faster despite the time guillotines that are intended to be imposed. I don't know of any tribunal that isn't backlogged and that values timeliness over integrity of process.

Currently, appeals against sponsored immigrant refusals made to the IRB take up to two years to be heard. Spousal cases in this group command the highest priority in the immigration firmament. And applicants don't seek delay. They want to come to Canada and be reunited with their families.

If two years is the best the IRB can do for high-priority people who don't seek delay, is it really realistic to think that the IRB can do better with a bigger and more complex challenge with regard to people for whom delay can be a positive feature that they in fact often seek?

The underlying problem with Bill C-11 is that everyone will have a right to a hearing before an independent decision-maker. This is neither necessary nor practical. Where there is no protection issue, there should be no involvement by the IRB.

Neither the charter nor the 1951 UN convention obliges us to hear claims of refugee status. The convention only obliges member states to refrain from refoulement, which is the forceable return of refugees to a country where they face persecution. Removing people from Canada without a hearing of a claim to refugee status does not contravene the convention nor the charter if it is done in a way that does not expose them to refoulement.

For example, Bill C-11 will allow the continuation of the absurdity of the current Canadian system, which has been abused wholesale by claimants from the Czech Republic and Hungary.

[Denis Coderre, Liberal, Bourassa, QC]

Mr. Chairman, I have always believed and thought, having applied it personally, that the way to manage or prevent a flood of false refugees—let's call them that—was to enforce a visa policy. We did it with Costa Rica, in particular, when we were in power, and it worked.

Putting forward a policy that asserts that such and such a country is a safe country strips Canada, in its scheme of values and its most firmly established program, of all its power to say that each case is specific. That means, for example, that Mexico could be perceived as a safe country, whereas, at the time, more than 1,000 refugees from Mexico were accepted. That's only one example among many others.

Instead of starting to consider refugees or future refugees as people who may abuse the system by suggesting that they are from such and such a country, why not do what we did with the United States, and sign a bilateral agreement with exemption measures, like the Canada-U.S. Safe Third Country Agreement? That would be better than starting to prepare a list of all safe countries, whether it be Greece or other countries. Ultimately, such a list will give refugees certain impressions. There may be abuses because, in order to take the pressure off his shoulders, the minister will be free to respond as he did during the Olympic Games. To one refugee claimant from Japan, he answered that Japan was a safe country and that that made no sense. We don't know what is going on in one country or another. There may be problems for reasons of sexual orientation, religion, gender or other matters.

So why put two fundamental elements in this act? I think we have to retain humanitarian and compassionate grounds—we can discuss that later, when my colleagues talk about it. However, why add this matter of designated safe countries, when all we wanted was to establish a much fairer process, similar, for example, to the provisions on the Refugee Appeal Division that we agreed on in Bill C-11? I'm entirely in favour of that. We didn't need to say that we're going to establish a list of safe countries and subsequently send somewhat contradictory messages.

Saying that you'll have a panel means you're in favour of the principle.

[Peter MacDougall, Director General, Refugees, Department of Citizenship and Immigration]

Thank you very much. We're all very pleased to be here to address you on Bill C-11, the government's balanced refugee reform legislation.

As you know, Bill C-11 proposes to reform our asylum system by giving faster protection to asylum claimants who truly need it, reducing the abuse of our system, and providing for faster removal of failed claimants.

We are aware of four areas of concern for the committee: the safe country of origin list; matters concerning humanitarian and compassionate claims; timelines for initial interviews with claimants and later hearings before the board; the hiring and independence of the officials who carry out interviews and hearings at the board.

Today, we will address the first two matters. I understand the committee will later be hearing from representatives of the board, who will address the latter two concerns.

As you know, Mr. Chair, as part of the proposed reform measures, the government would develop a safe country of origin list. Most Canadians and the United Nations High Commissioner for Refugees recognize that there are places in the world where the persecution of people is less likely to occur compared to other areas.

In his testimony to the committee earlier this week, Mr. Abraham Abraham, the UNHCR representative in Canada, noted that the UNHCR does not oppose the introduction of the safe country of origin list, as long as it is not used as an absolute bar to the consideration of an asylum claim. A safe country of origin list is a necessary tool to reform the asylum system. We have no way within the current system to rapidly address surges of asylum claims that could prove to be unfounded, such as claims from individuals whose countries have strong democratic, judicial, and accountability frameworks to protect their citizens. Without such a tool to help manage claims, our only other recourse is to impose visas.

Mr. Chair, we are aware that the proposal concerning this safe country of origin list has prompted concerns. As you know, the minister has stressed his desire to be flexible on this matter, and his appearance here on May 4 indicated his willingness to work out amendments either to the bill or to regulations that would clearly delineate the process for designating safe countries and the associated criteria.

As you know, Mr. Chair, the list of safe countries would include those that do not normally produce refugees, have robust human rights records, and offer state protection to their citizens. The safe country of origin list, however, would not be exhaustive, including countries from A to Z.

I would like to note that in developing the proposed list, we would not close the door on refugees seeking Canada's protection.

All eligible asylum claimants, regardless of where they came from, would continue to receive a fair hearing before the board just as they do today.

I would also like to underline that under this proposal, asylum claimants from safe countries of origin would receive the same hearing and access they receive under the system today.

In order to be even considered for the list, countries would first need to meet quantitative criteria. For example, only if the volume of asylum claims from a country exceeded a specified threshold and the acceptance rate for these claims did not reach a specific threshold, would that country be considered for the list.

These thresholds will be articulated in revised regulations, a draft of which will be provided to the committee, as agreed to by the minister.

Countries meeting the threshold would then undergo a thorough assessment, based on objective criteria. Such assessments would consider whether the country had a strong record of providing its citizens with human rights protections, and the availability of state protection and redress. The goal of these is to clearly delineate the criteria for the designation of safe countries of origin, including the factors that would trigger a review of a particular country, and ensure that the minister would not have discretion to designate a country that had not undergone a rigorous assessment.

This assessment would be done by a panel of experts from a variety of departments. It would make recommendations to the minister about which countries to include on the list once the country assessments were completed. We would also seek the input of the United Nations High Commissioner for Refugees in this process.

Using a safe country of origin mechanism to deter and manage spikes in asylum claims is not unique to Canada. Our approach would be consistent with similar policies in many European countries, including the United Kingdom, France, and Germany.

In addition, most European Union states also have accelerated asylum procedures for the nationals of other EU member states, which are considered to be generally safe.

Furthermore, the United Nations High Commissioner for Refugees has noted that the principle of developing such a list is not inconsistent with acceptable asylum practices.

I should note that Canada already makes determinations on country conditions, such as when ministers receive advice on which countries should be placed on the temporary stay of removal list.

This is also the case with visa policy decisions. Countries are treated differently. Some countries have a visa exemption and some countries do not.

Developing a safe country of origin list would fundamentally help reduce abuse of Canada's asylum system by those who are not truly in need of our protection.

Mr. Chair, we also realize that the proposed provisions on the humanitarian and compassionate program are prompting some concern. It is worth noting that the original intent of the H and C provision was to provide the government with the flexibility to approve exceptional and compelling cases not anticipated in the Immigration and Refugee Protection Act. It was never intended to be an alternate immigration stream or an appeal mechanism for failed asylum claimants. It should be reserved for exceptional cases.

But what has happened is that some failed asylum claimants use the humanitarian and compassionate provision in another process to try to remain in Canada. In fact, more than half of the humanitarian and compassionate backlog is now made up of failed asylum claimants.

The government has therefore proposed a one-year bar on humanitarian and compassionate claims following the last IRB decision, in order to discourage failed claimants from seeking to remain in Canada.

The idea here is to recognize that, since failed claimants would have just had their risk assessed, most would have access to an appeal and all could seek leave from the Federal Court.

In addition, these H and C applications often raise issues related to personal risk and country conditions, factors that are already considered by the IRB when it assesses the asylum claim. As a result, the proposed reforms also include removing the consideration of certain kinds of risks from humanitarian and compassionate applications.

Specifically, this concerns risks as defined under sections 96 and 97 of the Immigration and Refugee Protection Act, which are also assessed as part of the refugee protection process and in a pre-removal risk assessment. This reform would clarify the distinction between H and C decision-making and the refugee protection and pre-removal risk assessment processes.

Under the proposed measures, H and C decisions would focus on considerations such as establishment in Canada, the best interests of the child, relationships in Canada, the country of origin's ability to provide medical treatment, and risks of discrimination in that country, as well as generalized risk in the country of origin.

In conclusion, as the minister has said, the proposed measures meet and exceed Canada's domestic and international obligations and maintain the balance and fairness that are the principles of our entire immigration, refugee, and citizenship systems.

Thank you very much.

[The Chair, Conservative, David Tilson]

Good afternoon, everyone. This is meeting number 19 of the Standing Committee on Citizenship and Immigration, on Thursday, May 27, 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.

For the first hour today, we have officials from the Department of Citizenship and Immigration. We have Peter MacDougall, who is the director general of refugees. In fact, I think I recognize all these names; I think everybody has been here before. We have Jennifer Irish, director of asylum policy program development; John Butt, manager of program development; and Luke Morton, who is senior legal counsel and manager of the refugee legal team, legal services. You all have very long titles, but that's good.

Mr. MacDougall, I've spoken to you earlier. I'd like to welcome you and your colleagues to the committee. I think you're going to make a brief presentation of up to 10 minutes. Then my colleagues may have some questions for you.

I'd like to welcome all of you to the committee.

Citizenship Act

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Madam Speaker, I am pleased to have the opportunity to address Bill C-467, brought forward by the hon. member for Vancouver South.

This private member's bill stems from the passage, in the 39th Parliament, of Bill C-37, An Act to amend the Citizenship Act. Bill C-467 calls on the government to treat children born to or adopted overseas by Crown servants, including Canadian Forces personnel and federal and provincial public servants, as children born in Canada such that they would be able to pass citizenship on to any children they may have or adopt outside Canada.

First of all, I would like to commend the member for Vancouver South for his commitment to this issue, and I would like all hon. members to know that the government supports the intention of Bill C-467. However, we have some technical concerns with the bill in its current form, as it does not achieve its intended objective and would have, as the member points out, some unintended consequences.

Nevertheless, I am confident that we can address these concerns together, with the co-operation of our parliamentary colleagues. The bill will have a positive impact on the children of Crown servants and our military serving abroad.

I would like to share with my hon. colleagues a very brief overview of Bill C-37 and the reasons that led us, as a government, to restore citizenship to lost Canadians and to include a clear limit on citizenship by descent.

Members of the Standing Committee on Citizenship and Immigration will recall many witnesses who testified three years ago this spring as they shared their love for this country as proud citizens. They shared their dismay and their frustration when they described how it felt to discover that their citizenship was not, in fact, recognized by the law.

The public outcry was enormous, and that is why the government corrected the legislation. When Bill C-37 came into effect a year ago, it restored or gave citizenship to most people who were known as lost Canadians. Changes to the law restored or granted citizenship to the vast majority of those who lost or did not have it due to outdated provisions in previous legislation.

The changes meant that people who became citizens when the first Citizenship Act came into force in 1947, and people born or naturalized in Canada after 1947 and subsequently lost their citizenship, would reacquire their citizenship unless they formally renounced it or had it revoked because of fraud. Foreign-born persons adopted by Canadians between January 1, 1947 and February 15, 1977 would also be eligible to apply for citizenship. Complex rules that required some citizens by descent to take steps to apply to keep their citizenship were simply eliminated.

The new law also set a limit on citizenship by descent to the first generation born abroad. That was done to uphold the value of Canadian citizenship by requiring a real and concrete connection to Canada.

Hon. members will also recall debate of Bill C-14 in 2007 and the steps Canadians adopting foreign-born children had to take before their children could become Canadian citizens.

International adoption is a complex process, as we all know, involving many layers of approval by both provincial and territorial governments in Canada and by the federal government of the country where the child lives. In many cases, adoptions must meet the requirements of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

With the passage of Bill C-14, parents of foreign-born adopted children were able to apply directly for citizenship for those children without first having to go through the steps of applying for permanent resident status. It was a clear and bold reaffirmation of the values and principles that define our identity, our country, and the notion of the Canadian family.

The goal of fixing imperfect legislation with the passage of Bill C-37 and Bill C-14 was essentially to simplify the complex rules on Canadian citizenship.

The private member's bill before us today is certainly well intentioned, and we once again praise the member for Vancouver South for his constructive efforts. In the coming weeks, we look forward to addressing the technical issues that would otherwise prevent this bill from achieving its rightful objective.

The government recognizes the commitment and sacrifices that Crown servants and their families posted abroad make to this country.

I am sure that hon. members would also agree that any children born to Crown servants working abroad should not be penalized by not being able to pass on citizenship to any children they may have or they may adopt abroad as a direct result of their parents' service to this country.

Furthermore, there is absolutely no question that Crown servants abroad, including our military, have a connection to this country and we are confident that the changes proposed by Bill C-467 are consistent with the intent of Bill C-37.

There are a few issues with this bill that need to be examined. For example, the bill attempts to extend access to citizenship to the grandchildren of Crown servants by adding a new provision for children born abroad or adopted by Crown servants.

At the same time, it proposes to repeal a section of the act that currently allows all children born to a Crown servant outside Canada to be Canadians, regardless of the generation in which they were born outside Canada.

Similarly, right now, anyone born abroad or adopted by a Canadian parent who was born in Canada, whether or not that parent is a Crown servant, may apply for a grant of citizenship. The criteria for such a grant respect international obligations that are there to protect the best interests of the child and that respect the provincial jurisdiction on adoptions. Under Bill C-467 as it stands now, children adopted by Crown servants would no longer have to apply for a grant of citizenship, which could indeed be problematic.

Nevertheless, I am sure that all members would agree that the bill has a worthwhile objective and that, as Canadians, we should support our Crown servants posted abroad, especially and including military families, and recognize their sacrifice, their commitment and their strong connection to Canada.

That is why I am confident the intent of Bill C-467 can be achieved by expanding the current exception that exists under the law to ensure that the children of Crown servants, including Canadian Forces personnel, like children born in Canada, would be able to pass citizenship on to any children they have or adopt outside our country.

To ensure that the good intentions of Bill C-467 are achieved, I look forward to working co-operatively in the coming weeks with the member for Vancouver South, and all members, toward some constructive amendments.

We have a committee that is currently working on Bill C-11, the balanced refugee reform act. We are working our way through it. As members know, it is never easy at committee to come to a consensus on absolutely everything. I believe that bill is going to come back to this House, is going to be supported and is going to be passed. For the first time in decades we will have strong and positive change to our refugee act.

At the same time, I think the committee, with all four parties represented there, can come to some common agreement on the bill. The member has a critic who certainly has an open ear and a colleague who has an open ear to ensuring that we do what is right at committee.

I anticipate that we can do the same with this bill. I look forward to the day the member has the opportunity to present at committee and work with us on what I think will be amendments, necessary amendments nonetheless, that would ensure there are no unintended consequences with respect to this bill and the impact it would have on Canadians born abroad.

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

Less than an hour ago Abraham Abraham was here, from the Office of the United Nations High Commissioner for Refugees, and my Liberal colleagues were pushing in support of the safe countries designation. I hear very clearly from the three witnesses here that they do not support that kind of designation and that this kind of designation would have serious implications for gay and lesbian, bisexual, and transgendered refugee claimants, especially from a lot of the African countries, or Jamaica, etc.

To Egale, and then to the rest of the witnesses, have you been able to communicate that concern to the Liberal Party of Canada? Both the Bloc and the New Democrats are onside in not having safe countries designation, and also in making sure there are humanitarian and compassionate grounds considerations, because these too will be eliminated if Bill C-11 passes.

So Egale first.

[Pia Zambelli, Member, Legislative Review Committee, Quebec Immigration Lawyers Association (AQAADI)]

I am here on behalf of the Quebec Immigration Lawyers Association, which has some 150 members in the province of Quebec. I have been practising immigration law since 1988, and I served for five years on the Immigration and Refugee Board, but the views I am presenting now are consensus views of the immigration bar in Quebec.

AQAADI's position, in a nutshell, is that the Canadian refugee determination system does not need Bill C-11. This so-called balanced reform package is expensive, controversial, and largely misses the mark. Canada's current refugee determination system as established by 1989 amendments to the Immigration Act of 1976, with its focus on a high-quality oral hearing before an expert independent quasi-judicial tribunal, is considered among the best in the world. The major problems that had emerged over the years since 1989 had been some dubious decision-making attributable perhaps to patronage appointments and the patronage appointment system in general, the lack of an effective error correction mechanism, and as of late, slow processing times at the IRB. Bill C-11 does little, if anything, to remedy these problems.

The IRPA, which is our current legislation, brought in by the Liberals, sought to fix the error correction mechanism problem by instituting the RAD. Unfortunately, it was not proclaimed in force; but it can be, at any time, with or without Bill C-11. The RAD is already in our legislation. Slow processing times at the IRB were a product of the current government's failure to fill vacancies on the IRB. That problem I understand is now resolved, and the IRB has all its members. The patronage appointment issue still has not been solved.

Instead of addressing the real problems, Bill C-11 seems to be principally directed to a problem that does not really exist: namely, a flood of bogus refugee claimants clogging the system. This is not a true premise, and a false premise should not be the basis for a reform.

The 1989 amendments to the Immigration Act effectively brought an end to floods of unfounded claims that we saw prior to 1989. Today, Mexican and central European Roma claims have been identified publicly by the minister as the culprits, but these claims are not bogus. Even the Federal Court agrees.

Other problems with the bill, aside from its faulty premise, are as follows.

The reform seems dependent on ultra-fast timelines. As almost every witness has said, such timelines are unfair to refugees, and have never worked in the past, in any event. The restriction in clause 4 on access to humanitarian and compassionate relief are unfair and may violate international norms. There must be some way for refugee claimants to raise any type of humanitarian issue prior to the 12-month period, in case something arises in their country of origin, in case they have a medical problem, or in case they have a problem involving the best interests of their children who may be Canadian citizens. AQAADI's suggestion would be to give humanitarian jurisdiction to the RPD or to the RAD, or simply allow for an application for an exemption from the 12-month bar in certain cases.

The institutionalized interview process in subclause 11(2) will cause delays and prejudice to refugee claimants even if it doesn't occur within eight days, even if it occurs within a longer framework. It's not a good idea. From an efficiency standpoint, it could cause scheduling delays because counsel needs to be present and an interpreter will need to be present. Furthermore, taking and recording a prior statement will mean that these statements will be routinely used in the full hearing to discredit claimants, as has been done, not in every case, but frequently with the port of entry statements. Initial statements made by victims of traumatic experiences may be incomplete or confused. AQAADI's suggestion would be to delete this concept of a formal interview process and stick with the personal information form.

The designated country provisions in clause 12, which restrict access to the RAD, present a host of problems. Designation will presumably be based on safety, but this is not specified anywhere, nor are there any criteria provided.

The fact that classes of nationals within a country can also be designated—for example, homosexuals from Nigeria, Jews from Russia—is clearly discriminatory. It's not just a country that can be designated. There's a power to designate classes of nationals within a country and deny them an appeal. This new approach for Canada—it might exist in Europe, but it's new here—is apparently a response to a crisis with respect to bogus claims from Mexico or central European Roma. However, since there is no crisis, there is no need for this provision. Should there ever actually be a crisis, existing disincentives to filing manifestly unfounded claims or other administrative measures will be sufficient. I am referring to the credible basis provisions in subsection 107(2) of the existing IRPA, and subsection 231(2) of the regulations under IRPA. As well, groups of claims have been expedited administratively in the past within the IRB. There can be an administrative decision to expedite certain groups of claimants.

The provision is also unworkable, as it will likely be impossible to get agreement on what countries can be designated. It should be deleted from the bill.

According to clause 13, the RAD will be implemented. In addition, a power to receive new evidence has been added. The RAD could be an enhancement to the current system, especially if a completely merit-based appointment system is instituted.

[Max Berger]

I'm not sure at what point I went off the air, but I was saying that if I had to choose between Bill C-11, the current legislation, versus the status quo, I would choose the status quo, given the restrictions on refugee rights we see in this legislation.

In my seven minutes, I want to focus on just four points that I see as the most egregious in this legislation.

The first point is on the eight-day interview. A lot has been said about it being a ridiculously short period of time, and of course I agree with that, but not much has been said about the abolition of the PIF.

Under this new act, the PIF, the personal information form, which has been the anchor document of our refugee system for the last 21 years, is going to be abolished for this interview. I'm of the school that if it ain't broke, there's no need to fix it. The PIF and the way the narrative is prepared, in a calm, civilized manner in a lawyer's office, is the best way for a claimant to prepare his story for the board.

What we're replacing it with is going to be similar to the port-of-entry interview, and we've all had terrible experiences because claimants are not sophisticated narrators of their history. The interview is going to come out all scrambled and jumbled: a story with no head and no tail.

If the objective of putting the person in front of an interviewer in eight days is to get hold of him before he has a chance to be contaminated by fraudulent consultants plying them with fraudulent stories in their community, well, that objective is not going to be served, because someone who wants to commit a fraud will just find a fraudulent consultant earlier, within the eight days. So my proposal is to just leave the PIF as it is and abolish the eight-day interview altogether.

The second point is with respect to the first-level decision-maker being a civil servant. I think it's a bad idea. The goal should be that we need the best possible decision at the first-level decision-making process.

In regard to the current GIC appointees, while I don't like the politicization of the process, we have members who come to the board with a wide variety of experience, having been on boards and tribunals in the past. What we're doing now is ratcheting down the quality of decision-making by restricting it to civil servants. I think that's a mistake.

My third point is with respect to the designated country list. Here, I'm going to suggest a compromise between the government's position and that of most of the refugee advocacy groups that are against the list, including me.

My compromise is this. If you are from a list country and you tell a story to the board that is true and you still lose your case, not on credibility, but because perhaps there's been a change of circumstances or on state protection or an internal flight alternative.... But if your credibility has not been challenged and you're from that list country, you should still have the right to a RAD, to the refugee appeal division. You should have as much right to the RAD as someone from a non-list country whose credibility is completely trashed at the first-level hearing.

The Czech Republic is a perfect example, because the Czech Republic is going to be the first country on that designated list. I do a lot of these Czech Roma cases. In almost all of them, their credibility is not impeached. They lose because the board seems to think that in the last year or two there has been a miraculous change in the government in the Czech Republic that makes it safe for the Roma claimants.

That's my compromise position here. So the RAD would be denied only to those people from a list country who have been found not to be credible in their history of persecution.

The fourth and final point, Mr. Chair, is that we have to make sure that no one falls through the gaps. Here I'm talking about the fact that there's no H and C and no PRRA within a year of the final negative RAD decision. There are two issues here.

First, in that one-year window, if new facts emerge that would shed a different light on the claim and demonstrate a real well-founded fear of persecution, what can we do for that person to ensure he doesn't fall through the cracks? Because I don't think our courts would countenance him or her being refouled. I think it's against our Charter of Rights and Freedoms. My suggestion for this is that in such an eventuality, the refugee board be allowed to have a motion to reopen the refugee claim. That was something that was proposed when IRPA was being contemplated, but in the end it was not adopted.

The second aspect of this--and this is the final point, Mr. Chair--is with respect to falling through the gaps. Not every claim of persecution is captured by section 96 or section 97, either by the convention refugee decision or by cruel or unusual punishment in section 97. I speak in particular about claims that are based on extortion by criminal gangs. Those are the kinds of cases, and we see a lot of them, where there are legitimate claims--these claimants are in fear for their life--but there's no nexus to the definition so they can't win under section 96. The courts have been ruling that those claims are based on a fear of generalized violence, so they don't fall under section 97. And under Bill C-11, those kinds of claims would fall right through the cracks. They couldn't win in the refugee hearing, and they don't have the right to an H and C, to a humanitarian and compassionate application. So we need to make sure that those kinds of claimants do have the right to H and C, and H and C based on risk, right away.

Thank you.

[Max Berger, Lawyer, Max Berger Professional Law Corporation, As an Individual]

Thank you very much.

By way of background, I am an immigration lawyer and I've been appearing before the board since 1989, the year of its inception. I appear quite regularly before the board.

I would characterize this act as one step forward and one step back. If I had to choose between Bill C-11 and the status quo, I would...[Inaudible--Editor] ...given the restrictions on refugee rights that we see in this legislation.

In my seven minutes, I want to focus on—

[Rick Dykstra, Conservative, St. Catharines, ON]

There certainly have been concerns raised over the designation of safe countries of origin where there are certain vulnerable populations. I appreciate how direct and open you've been on this. Do you think this concern is answered by the proposal in Bill C-11 that allows the minister to make designations specific to a population within a country so that they can be exempt from the designation? You gave a very good example of something for which we would certainly hope to seek exemption, in terms of a specific population in a country.

[Abraham Abraham, Representative in Canada, Office of the United Nations High Commissioner for Refugees]

Thank you, sir.

I'll go straight into my presentation, which I'd like to give in the interests of time.

Chairman Tilson, honourable committee members, ladies and gentlemen, the UNHCR appreciates the opportunity to provide comments relating to Bill C-11.

The Canadian refugee status determination procedure is one of the very few that the UNHCR holds up as an example to other countries. The necessity to provide fair and efficient refugee status determination procedures for refugee claimants stems from the right to seek and enjoy asylum as guaranteed under article 14 of the Universal Declaration of Human Rights, the responsibilities derived from the 1951 United Nations Convention relating to the Status of Refugees and its 1967 protocol, from international and regional human rights instruments, as well as relevant executive committee conclusions.

As underscored by the UN General Assembly and the UNHCR's executive committee, in which Canada plays a significant role, physical access of asylum seekers to the territory of the state where they are seeking admission as refugees and access to procedures where the validity of their refugee claims can be assessed are essential pre-conditions of international refugee protection.

I would like to briefly review the various proposed changes to the Immigration and Refugee Protection Act.

Regarding time limits, the bill provides for expedited timeframes, including the referral of a refugee claimant to an interview with an Immigration and Refugee Board official. While not specified in the bill, we are informed that the planned change is intended to include a data-gathering period of eight days, which replaces the personal information form process, schedule a hearing date, and complete first instance refugee status determination before a civil servant within 60 days.

The UNHCR advocates for fair and efficient refugee status determination procedures, including timely processing of asylum claims. Rapid processing should not, however, compromise fairness. It is important that a substantive written report be made of every personal interview, containing essential information regarding the application as presented by the asylum seeker. Based on the best state practice, the asylum seeker should have access to the report and whose approval is sought regarding the contents. Procedural guarantees for applicants, including access to information about the procedure and the assistance of interpreters, should be a right. Time limits should not unduly impact on asylum seekers' right to counsel and ability to collect and review information prior to hearings. Excessively short and tight deadlines can impinge on fairness. Best state practice ensures that the reasons for not granting refugee status are in fact and in law stated in the decision. This should be shared with the applicant to allow time to decide whether to appeal, including time to prepare and lodge an appeal.

In the UNHCR's view, it is important that decisions are properly substantiated so that the applicant can appeal meaningfully from a negative decision.

Regarding the use of Governor-in-Council appointees in first instance decision-making, refugee status determination undertaken by independent decision-makers is fundamental to the fair assessment of asylum claims. This should be carried out by staff with specialized skills and knowledge of refugee and asylum matters, who are familiar with the use of interpreters and appropriate cross-cultural interviewing techniques. Wherever possible this should be undertaken by a single central authority. The central refugee authority should also include decision-makers with training in the treatment of applications by individuals with differentiated needs, including women, children, applicants who are victims of sexual abuse, torture, or other traumatizing events, or individuals with mental or physical impairments that may negatively impact their ability to articulate a claim for asylum.

Regarding the implementation of the refugee appeal division, the UNHCR warmly welcomes the implementation of the refugee appeal division. In most countries that institute individualized refugee status determination procedures, claimants have the right to an appeal before an independent and impartial tribunal or body. This supports the right to an effective remedy in law. Such an appeal instance should have the jurisdiction to review questions both of fact and of law.

UNHCR recommends that the refugee appeal division should be available to all claimants, including those from “designated” or “safe” countries of origin. Instituting such an appeal mechanism will enhance Canada as a model. At the core of the refugee convention lies the principle of non-refoulement, whereby those with protection needs cannot be returned to a place where they will be at risk of human rights violations, persecution, or even loss of lives. The purpose of an appeals mechanism is to ensure that errors of fact or law in the first-instance decision-making can be corrected.

With regard to designated countries, the so-called “safe country of origin” list, UNHCR does not oppose the introduction of a “designated” or “safe country or origin” list as long as this is used as a procedural tool to prioritize or accelerate examination of applications in carefully circumscribed situations, and not as an absolute bar.

The safe country of origin concept is a presumption that certain countries can be designated as generally safe for their nationals insofar as it can be shown that there is generally and consistently no persecution, no torture, no inhuman or degrading treatment or punishment, and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

In such situations, it is critical that each application involves a personal interview and is examined fully and individually on its merits in accordance with certain procedural safeguards; each applicant is given an effective opportunity to rebut the presumption of safety of the country of origin in his or her individual circumstances; and the burden of proof on the applicant is not increased, and applicants have the right to an effective remedy in case of a negative decision.

If the safe country of origin concept is employed, there must be clear and objective benchmarks for the assessment of general safety and mechanisms, including review of changes, both gradual and sudden, in any given country.

Separated and unaccompanied children require special procedural safeguards, including the application of the principle of “the best interests of the child”, in accordance with the 1989 Convention on the Rights of the Child.

It may be that despite general conditions of safety, for some groups or relating to some forms of persecution, the country may remain unsafe. It is UNHCR's view that legislation should assure greater access to assessment mechanisms for those with heightened risk profiles.

A country cannot be considered safe if it is so only for part of its geographic territory. UNHCR emphasizes that the designation of a safe part of a country does not necessarily represent a relevant or reasonable internal flight alternative.

With regard to removal and to the one-year bar on access to PRRA and humanitarian and compassionate review subsequent to a negative final determination by the IRB, UNHCR guidance is that an asylum seeker should have access to a first instance decision, followed by an appeal in case of a negative decision. As good practice, there should be a mechanism for addressing protection gaps that may arise subsequent to IRB decision-making whereby individuals in need of and deserving of recognition as refugees, who are nonetheless not recognized through regular processing, can be protected.

UNHCR also notes that effective return policies and practices are essential to maintain the integrity of the refugee status determination procedures and asylum space and that it is appropriate for states to remove persons not to be in need of protection where they have had access to full and fair procedures.

With regard to assisted voluntary return, UNHCR supports the proposed assisted voluntary return program. UNHCR considers that sensitive counselling at all stages of the asylum process is necessary, including for those subject to removal procedures.

Chairman Tilson, honourable committee members, ladies and gentlemen, I thank you.