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.

[Alice Wong, Conservative, Richmond, BC]

Thank you.

You also have given us some cases which demonstrate that our current asylum system is vulnerable to abuse. How do you think the measures in Bill C-11 will deter abuse?

[Julie Taub]

I don't agree either, because while I agree that the scourge of consultants is terrible and contributes to the abuse of the system, Bill C-11 is attempting to address the issue of bogus claims in another way: by addressing safe countries of origin and having them go through another stream, a speedier stream, to be dealt with. I agree with that.

As for the consultants, this has been a festering issue for a long time. I think it's going to take a lot more consultation with different members of law societies of the various provinces, as well as victims of consultants, before the government can come to some significant decision on new legislation. I don't think one should mix up the other, because the government has to consult with all the law societies and with those who were victims. I'm sure they can find thousands of them.

[Julie Taub]

I'm not sure if I quite understood. I gather what you're saying is that if we're not addressing the issue of consultants, we should not proceed with Bill C-11.

[Alice Wong, Conservative, Richmond, BC]

Thank you very much to both of our witnesses today. Thank you for your time.

I have to address one of the remarks made by our honourable opposition here. We need to add something about the discouragement of bogus consultants in each bill. What do you think? We had similar challenges for temporary foreign workers. We had similar challenges for live-in caregivers who were cheated by consultants. We also had other cases.

Should we not, collectively, have one law to just address that program, which covers all the consultants, rather than what has been suggested just now, which is that if this is not directly handled in Bill C-11, then it shouldn't be there, that we shouldn't really approve Bill C-11...? I'll open this up to both of you.

Ms. Taub.

[Martin Collacott]

First of all, thank you very much for inviting me to speak before the committee.

Before making my comments on Bill C-11, may I say that I share with other Canadians the belief that Canada should give protection to a reasonable number of genuine refugees? I would add that some of my own family members, my in-laws, were boat people who fled from an oppressive regime. I got interested in these issues when I served as ambassador or high commissioner in various countries in Asia and the Middle East, where there were large flows of refugee claimants as well as immigrants in general.

We have to acknowledge, though, that despite public support for a good refugee system, there are major problems with the current system. The public is concerned about this and there is strong public support for reforms to the system, both to speed up the process for cases that have merit as well as finalize decisions and arrange for the speedy removal of the large numbers of claimants who are not considered to need our protection.

It's abundantly clear that a very large number of the people who make refugee claims in Canada are not fleeing persecution, but are, rather, abusing the system simply to gain permanent residence in this country, in most cases for economic reasons. Even though Canada is one of the most difficult refugee-receiving countries for asylum seekers or refugee claimants to reach because of its geographical location, we nevertheless receive a very substantial proportion of the claims made globally because we have the most generous system of benefits for claimants and, on average, we approve three times as many claims as other countries do.

In 2009, for example, we received over 33,000 new refugee claims. The UNHCR made a survey of 44 industrialized countries. Out of those 44, we ranked behind only the United States and France in absolute number of claims. Both of those countries have significantly larger populations and are much more geographically accessible to most asylum seekers.

In the time allotted to me, I'm going to concentrate my remarks on the provisions of Bill C-11 that deal with what are described as designated countries of origin, which are widely referred to internationally as safe countries of origin.

If members of the committee wish, I'll also try to answer questions on other aspects of Bill C-11, such as the use of public servants in the first or initial decision level of the determination process.

The term “safe countries of origin” is used to describe countries that are democratic, have a good human rights record, subscribe to the UN conventions on human rights and refugees, and are considered not to persecute their citizens. Many refugee-receiving countries won't even consider a claim from a national of a safe country of origin, or they at least have in place a system for dealing quickly with such claims so they don't clog the system and these countries can concentrate on claims that have merit.

Canada, however, until now, has been practising no such restraint and has allowed people to make claims who are nationals of a host of countries that would not seriously be regarded elsewhere as refugee producing, that is, that persecute their citizens as defined in the UN convention.

In 2008, for example, we allowed claimants into our refugee determining system who were Norwegians, New Zealanders, Australians, Germans, French, British, and American, and the list goes on. While the number of nationals from most of the countries I just mentioned was in most cases relatively small, some were not. In 2008, for example, more than 2,300 U.S. citizens made refugee claims in Canada. That's not an insignificant number when it comes to the time and resources required to deal with their claims.

Perhaps more noteworthy, however, are the sudden increases that have occurred in a number of claimants from specific countries, many of which would be considered by other refugee-receiving countries as safe. Most recently, these have involved claimants from Mexico, the Czech Republic, and Hungary, but there were similar occurrences going back decades and involving people from Portugal, Trinidad and Tobago, Turkey, Argentina, and Chile, etc.

This type of problem has arisen in part because of the way we've stretched the definition of persecution in the UN convention. Ironically, Canada some years ago warned the international community at a UNHCR meeting in Geneva that if the refugee definition is drawn too broadly, we risk defining the problem into complete unmanageableness, and that is what has happened, to a large extent.

The Canadian representative at that particular meeting went on to make the point that it was particularly unfair that we spend thousands of dollars each on individuals who manage to reach our territory whether or not they are deserving of our help, yet relatively little on those languishing in refugee camps.

In the case of the spike in claims last year by people from the Czech Republic, the argument was made by refugee advocates that although members of the community from which most of them came, that is, the Roma--or as they are sometimes called, the gypsies--weren't being persecuted by the Czech government, the fact that the latter could not prevent members of the population in general from discriminating against the Roma was the equivalent of persecution and, therefore, they should be eligible to make refugee claims. Under this expanded definition of persecution, we would be obliged to accept, for example, applications from the more than 100 million of the Dalit, or untouchable caste, in India.

Clearly, the refugee convention was never intended to deal with this kind of problem, and if the convention is to be applied in a realistic and practical manner, it cannot be interpreted in a way that results in us being expected to solve other people's social problems by moving all of their people in difficult circumstances to Canada. It's worth noting in this regard that the other members of the European Union will not consider a refugee claim from a Czech national, Roma or otherwise, since the Czech Republic is a democratic country with a good human rights record.

In the circumstances, it is quite appropriate that Canada establish a list of designated countries of origin, particularly in cases where there are rapid increases in claims from nationals of countries that do not persecute their citizens. In my view, the answer is clearly yes: we should establish such a system.

Until now, we've been reduced to imposing visitor visa requirements in such cases. This is a very awkward way of dealing with such situations and it usually brings with it a number of negative consequences, including adverse reactions from the countries affected, and it might include retaliatory impositions of visa requirements on Canadian travellers.

A further negative consequence of the ease with which virtually any non-Canadian can make a refugee claim in Canada is the extreme caution we often have to exercise in issuing visitor visas to nationals of many countries. When I was working at various Canadian embassies overseas, we frequently had to turn down visitor visa applications from people who were probably bona fide visitors but who we could not take a chance on because it was so easy for them to claim refugee status once they arrived in Canada. If we had a more sensible refugee determination system, we would not have to turn down as many visitor visa applications as we do now.

Now, will the provisions for designating countries of origin in the proposed legislation work effectively if indeed they're approved and implemented? That remains to be seen.

People from countries so designated will still be allowed to make refugee claims but will not be able to lodge an appeal with the refugee appeal division if their claim has been turned down. The expectation, presumably, is that this restriction will deter most such individuals from making claims in the first place. But should this not turn out to be the case, should it not be a significant deterrent, the government would be well advised to consider firmer measures to control the unjustified spikes from nationals of those countries of origin.

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

Thank you.

You certainly can't speak to the policy that was worked into Bill C-11, necessarily, but to give folks an understanding, what are your comments, perhaps, on what the problems in the current system are and what your input was from a structural perspective on where change needed to happen?

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

Of course, until the bill is actually delivered through to royal assent and enacted, some of the perceptions and some of the thinking on this can't be implemented.

You made the point that the discussion regarding the financial aspect of this will obviously involve a great deal of time and effort on your behalf. You would acknowledge, though, and I think you did, that your involvement in this process ostensibly started 18 months ago. And really, from day one, the ministry has made sure that you, your department, and your organization have been included in terms of the research and some of the proposals that have turned into what is now Bill C-11.

[Brian Goodman]

Well, I believe that figure was provided to you by the minister, but there are a number of components, and we are simply one important recipient of the funding. There are others. In particular, there is the Canada Border Services Agency, so that it can do front-end security screening in cooperation with CSIS and, more importantly, so that it can remove unsuccessful claims. That is what I talked about earlier. You can't concentrate on only one part of the system because you create bottlenecks in the other.

The Federal Court is going to require more judges, because we will hopefully be getting some money to address the backlog of cases. That currently stands, as I mentioned, at about 59,000.

Now, it's important to understand--because you've read Bill C-11--that the transition provisions apply to the backlog cases when the new act comes into force, and that the timeframes that will be stipulated in the rules, it's clear from the legislation, will not apply to the backlog claims--that is, the 8 and 60 days, etc.

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

You say that you deal with 25,000 cases per year at this time. Of that number, how many are accepted each year? How many claimants are accepted as bona fide refugees? Also, have you tried to estimate what the figure would be under Bill C-11? For example, once the system is stable--three or four years after implementation--how many people would be accepted, in both cases?

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

In your previous answer, you said that it might be worthwhile to consider hiring directly from the general public to staff the future group that will be created for refugees under Bill C-11. Do you believe there is an optimal target or threshold to aim for?

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

Thank you.

First, I would like to make a comment.

You said that currently, under the present legislation, only .5% of first-level decisions are reversed at the judicial review stage. As far as I am concerned, this proves that this is not a real appeal system. Too much is the same as not enough. If too many decisions are reversed on appeal, that indicates there is a problem at that level. However, if none or only a few first-level decisions are reversed, that indicates there is a problem with the appeals system. That being said, I will leave that aside since we are here to talk about the future.

Let us talk about Bill C-11. Earlier, I asked you a few questions about hiring first-level decision-makers from the general public. Can you tell me what proportion of people are hired from outside the public service in the division where this model exists, the Immigration Division? Then, what would be a reasonable target for this type of hiring for the future Refugee Division?

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Yes. You can understand why, as a member of this committee studying this bill, which will in fact either approve or not approve this bill...you play such an important role to this committee that it would be important for us to know the type of input you gave. Quite frankly, as a member of Parliament I have the right to ask what the chair of the Immigration and Refugee Board thinks of the bill, because we're here to study this bill. For us not to be able tot access that type of information concerns me.

But having said that, let me perhaps rephrase it so you can answer it. Having read Bill C-11, what do you think the major challenges will be for your organization in implementation of this? That's a fair question, right?

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Thank you very much, Mr. Chairman.

Mr. Goodman, you said you were consulted by the government before the government introduced Bill C-11. I was wondering if you could share with us not all the points you've raised, but your top three top-of-mind points you made to the government, because in the final analysis you were a very important part of the architecture of this system.

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

I'll just follow up on what my colleague was talking about. The difference between now and after Bill C-11, if it passes Parliament and the Senate, will be that rather than through the Governor in Council it would be through the public service association. What role would you play and how would that change?

[Brian Goodman]

I don't have the figures in front of me. I'll provide those to you as well.

I understood that we were here to talk about Bill C-11, so that's the only reason I don't have them with me.