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.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you, Mr. Chair.

Obviously, if the Minister of Citizenship and Immigration feels that a situation requires and warrants an application for permanent residency on the basis of humanitarian and compassionate grounds, this application should be allowed due process, and a deportation order should wait until this application has been finalized.

Additionally, we heard from Mr. Les Linklater, the assistant deputy minister at Citizenship and Immigration Canada, that his department has recently transitioned to an improved way to assess humanitarian and compassionate applications, as passed by Bill C-11 in 2011.

We need to allow these improvements to work through the system and evaluate their impact before wasting more time and money in rewriting these provisions yet again.

Thank you.

(Amendment negatived)

(Clauses 14 and 15 agreed to on division)

(On clause 16)

[Jinny Sims, NDP, Newton—North Delta, BC]

Once again, Mr. Chair, I want to reiterate that we believe the current legislation, Bill C-11, would address the concerns we've heard expressed from the government side.

Right now, none of the designated people could receive a temporary resident visa or anything else for up to a year. They may not even have travel documents or anything else. What we're saying, and what this amendment says, is that the only people who would not be given a temporary resident visa are those for whom identity has not been determined and for whom security requirements have not been addressed. But as soon as those two things are done, then people should have documents.

(Amendment negatived)

[Jinny Sims, NDP, Newton—North Delta, BC]

The NDP's position is that we are not supportive of two categories of refugees. We believe the current legislation, which was Bill C-11, allows for the government to identify and do security checks. We feel that is adequate.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much.

It's not going to come as a surprise to anybody around this table that the NDP is very, very concerned with the kind of speed with which we're going through this legislation. I don't know about the rest of my colleagues, but after hearing the hours and hours and days and days of testimony, there is a lot for us to review. It's not only the verbal testimony we heard, but the very thick briefs that were submitted. To read and digest all of that before we get into clause-by-clause, as you can imagine, all our brain cells need a little bit more time. That is why I brought that motion forward, or tried to, to say that we should suspend. It was not to say that we should never come back to it; it was to suspend.

New Democrats are concerned about the lack of time we're going to have. This was also eloquently stated by other witnesses, such as Peter Edelmann, from the National Immigration Law Section of the Canadian Bar Association. On May 1 he said: “What is of particular concern is the speed with which this complex legislation is being passed without the time to properly study it.” I really want to stress that: “without the time to properly study it”.

We're being asked to pass a bill on a very short timeline, and we don't know how many more unintentional consequences there will be. And they are in this bill. No one that I'm aware of has been able to study this bill in depth in terms of all of the unintended consequences. We simply haven't had time to study in depth this piece of legislation. Never mind not having studied the legislation, we've had witnesses—legal, community groups, refugees—who have come to present to us, and I don't think we've had adequate time to give all of that testimony due consideration either.

Notwithstanding that, there are key areas in this bill we have major concerns with, but as the official opposition we want to make things work. We are not here to try to slow things down. As a matter of fact, we can't wait to get to clause-by-clause, so I'm planning to keep my comments fairly brief. We do want to make things work. That's why we have submitted 20-plus amendments. We will be looking forward to seeing the amendments. We've seen them, actually, but we look forward to hearing the rationale. And if there are additional amendments from either the Liberals or the Conservatives, we will give them due consideration. We want to make this work for some of the most vulnerable people who are going to be arriving on our doorstep, and we want to ensure that they are granted due process.

Some of our key concerns have been highlighted and corroborated by many, many witnesses. I wish I had the time to read into the record all that they said, but we don't. These concerns include:

—The provision that gives the minister the power to hand-pick those countries he thinks are safe. This would do away with an independent panel of experts.

—The ability to detain refugee claimants for a year without review. Once again, that causes us major, major concern, because not only are we looking at contraventions of our international obligations, but of our own charter and constitution and habeas corpus.

—Measures to deny some refugees access to the new refugee appeal division, which, once again, is simply an anathema.

—A five-year mandatory wait for bona fide refugees to become permanent residents and reunite with their families.

Once again, I want to stress that one of the things we've often heard is about the security of Canadians, about protecting Canadians. Bill C-11, the Balanced Refugee Reform Act, agreed to by the parties and praised by the current minister, actually addresses those concerns, because current legislation allows for identification and security checks to be done before people are released.

With all of that in mind, one of the things we are very, very committed to and want to appreciate is that there has been some movement from the minister. We saw a little bit of it in the clause, and from what he said today we're looking forward to more. We will be looking at his proposals closely at committee and taking them very seriously.

That said, we've also heard overwhelmingly from witnesses in the past two weeks that this bill is fundamentally flawed. Tweaking it is not going to fix it. This bill does nothing to prevent human smuggling, since our punitive measures for smuggling are already there. What it does is punish yet again the most vulnerable people arriving on our doorstep.

We have a bill in place that could actually become operational. We could take a look at Bill C-11 over a longer period, study it, and make sure that we do it right. It's in all our interests to make sure that we do all our legislation right. We will be looking at all of the measures. My colleague from the Liberal Party clearly articulated the concerns that we have expressed, and that witnesses have expressed as well. On this piece of legislation, we need to take a break. We need to suspend and make sure that we do it right.

I want to appeal to my colleagues across the way. Let's take a suspension, let's operationalize Bill C-11, and let's do this right.

[Lorne Waldman]

We in principle don't support it. The reason we don't support it is that my experience is that many countries that appear to be democratic are not necessarily democratic, or may not be democratic for a subcategory of individuals. The best case is Mexico. Some of the cases I've seen out of Mexico are shocking and appalling, and you can see some of the recent decisions of the Federal Court that reflect that. Mexico has huge issues in terms of state protection. They have a huge drug trafficking problem, and it's created major problems for individuals.

You referenced the UN. I understand the UNHCR supported the idea of a designated country list as it was drafted in Bill C-11, which meant that there would be expedited hearings for people from designated countries. They certainly didn't support the idea of removal of an appeal.

We agreed, as a compromise, to support a designated country of origin list if it meant an expedited hearing. But the problem with the current incarnation of the bill is, (a), the designated country of origin list does more than that. It removes the right of appeal, it removes the mandatory stay. And (b), the timeframes for the hearings are completely unrealistic. So you're saying you're going to give a sham of a hearing to a person who won't have enough time to properly present his case, to satisfy the constitutional guarantees.

I can tell you that we'll challenge that under the charter, because a fair hearing means a hearing that allows a person enough time to prepare a case, to present a case in a meaningful fashion, and 15 days and 30 days, in my view, isn't going to cut the mustard.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much, the three of you, for coming to spend some quality time with us.

I think all of you will be aware that just a year ago we adopted Bill C-11 and the components of Bill C-11. Also, I think it has been very clear as we have questioned both staff and others that the key elements from Bill C-11 have not been implemented yet, so we actually don't even know whether we really have a problem.

Bill C-11 is called the great compromise. The minister and our critic of the day, Olivia Chow—and I'm sure Mr. Dykstra was involved in it as well—all talked about it being a great piece of legislation, because it brought all the elements together and there was a lot of agreement. It seemed to address the key issues arising from boatloads of people coming to B.C.'s shore, the two boats.

I have to say that most of those people—as we know, even before Bill C-11—have been accepted as refugees. Refugees very rarely stop to think, especially if their lives are in danger and they've had the kinds of persecution they've had, about the dangers of the seas, because they're in a corner and they have to escape. They're worried about their lives, limbs, and their families, and all of that. They came to our shores, and as we know, a vast majority of them have been accepted as legitimate refugees.

In Bill C-11 Canada also has, I would say, some of the strongest sentencing for human smugglers. Really, in Canada we can't go greater than life imprisonment, because we don't have the death penalty in Canada, and I'm not hearing anybody from either side say that it is where we want to go. So we already have the strongest deterrent possible for smugglers, a life sentence and also $1 million in fines.

But as you know, smugglers are very sophisticated operatives. I often say that while we're chasing the victims, they're probably sitting—and I don't mean to malign New York—in a New York side street café drinking lattes and wearing their Armani suits, for all we know.

Yet it's the victims I want to focus on here, because I believe Bill C-11 already has very strong punitive measures towards smugglers. I also recognize the fact, and I would say many experts do, that smuggling is an international problem—it's a curse across the world—and it needs to have governments working together to address it in a way that targets the smugglers, not the victims again.

The other aspect of Bill C-11 is the detention part. Bill C-11 allows detention of people, but not just for a year; they can even be detained longer, for identification and for security checks. But what's different about Bill C-11 is that periodically you have to go back and justify why you want that extension.

So as far as detention goes, I think it's already covered, because the minister, even under the current system, has been able to keep some people in detention for far longer than this; whereas with this new piece of legislation, all the irregular arrivals would end up in detention. Notice a marked difference from where Germany is, as we heard in earlier testimony as well.

The other concern, when I look at all of this, is over the detention. My colleagues across the aisle have sort of said, “Yes, but the minister....” That's another concern we have: there is too much power in the hands of a minister.

It's not because it's this minister; I would have concerns about a minister of any stripe having that much power in individual hands. What we're seeing is more and more of that power being centralized and therefore losing some of the objectivity that you count on when you have a panel of experts, say, or others.

One of the other things we're hearing a lot about is cost. Well, I can tell you that the cost of detention is very, very high. I have often said that if we were willing to spend even one-tenth of what we're prepared to spend on detention for youth...in my previous life. We would not have the need to have that many detention places if we were willing to spend one-tenth on education, on prevention programs, and a lot of those things.

But in this case, the cost for detention for a year...? This is for everybody who comes here in an irregular way in a group of more than two—except for families, and I appreciated that clarification this morning. We really have to take a look at that as well. Surely this can't be another prison-building agenda when we look at where we want to go with our refugee policy.

One of the other concerns we've had raised by quite a few witnesses of all stripes is the timelines and the kind of charter challenges that could be opened because people are not being given due process.

Other countries that have taken these kinds of measures of mandatory detention are actually moving away from them. Here we are in Canada, a progressive country; instead of learning from the mistakes of others, we have a tendency in the last little while to want to copy the mistakes of detention.

Thank you.

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

Thank you, Mr. Chair.

This has become a recurring theme. I had hoped that when we started the process, in terms of witness presentation—and I don't hold any of you responsible for this—we would be hearing from different themes in terms of support or not support of the bill. I find I'm repeating myself on a regular basis.

Based on the opposition that you have to the bill, I understand your perspective, but we have heard it on a number of occasions already. In fact, I do want to clarify a couple of things.

Number one, the former United Nations High Commissioner Abraham Abraham said that the UNHCR does not oppose the introduction of a designated or safe country of 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. Many countries, including the United Kingdom, Ireland, France, Germany, the Netherlands, Norway, Switzerland, and Finland all use and implement the designated safe country.

In terms of the criteria for claimants from countries—for example, there are two quantitative thresholds for countries that have a mass number of applications into our country, for those who are seeking asylum as refugees. They have to meet one of two quantitative thresholds, or limits, as set out in the order. The proposed triggers for a review are based on rejection rates, withdrawal, and abandonment rates. A rejection rate, which includes abandonment and withdrawal, of 75% or higher would trigger a review. Similarly, an abandonment and withdrawal rate of 60% or higher would also trigger a review, and I repeat “a review”. It doesn't automatically mean that the designation is going to take place. An internal review led by the Ministry of Citizenship and Immigration, in partnership with a number of other ministries within the government, will make the determination or recommendation based on a review that the country that is in question has either hit the criteria from a quantitative perspective or is subject to a review based on the number of withdrawals or abandonments that we have seen. So there are defined criteria that will be here.

I was part of Bill C-11. I sat through every minute of the hearings, and also the negotiations in terms of moving it forward, and 80% to 85% of Bill C-11 is going to move forward. There are just additional aspects that we have brought to the table here.

Under Bill C-11, which was a problem with respect to the designated country, there was no provision for transparent criteria. The criteria would be determined by the group itself. The concern we had was (a) what would those criteria consist of, and (b) there were no assurances as to the time allocation of how long that determination process would take. So at least through here, (a) we have a transparent set of criteria, and (b) we actually know the timeframe within which this designated country application will actually take place.

For claimants from countries with a low number of claims, we're actually going to move to a qualitative checklist, which will be established right in the legislation itself. So the qualitative checklist will include (1) the existence of an independent judicial system in that country; (2) recognition of basic democratic rights and freedoms, including mechanisms for redress if those rights or freedoms are infringed; and (3) the existence of civil society organizations.

While I respect that you may not agree with the process in terms of how we come to the conclusion, it's unfair, and it's also untrue to state that there aren't qualitative and quantitative criteria built in to both the legislation and the mechanism that will be used to go through the process for review. It's really important that this gets put on the table. I think part of the reason that folks come to the table and state that they're unsure of, or leery of, the designated safe country is that this information isn't necessarily at your fingertips. I do understand that is a concern, but I also understand that as we move forward in terms of Bill C-31...and part of the reason why we're doing these hearings is to afford us all the opportunity to understand the bill as it sits in a much stronger form.

Kelsey, I wanted to ask you about one of the concerns I have. I respect the fact that the opposition to a particular piece of legislation is democratic, but so is the support of the legislation, and we've heard from a majority of Canadians across this country that in fact this bill doesn't go far enough and that it should be more aggressive in its nature. We don't necessarily agree with that. We want a bill that is going to do both: suit and meet the expectations of most Canadians, and also, obviously, respect the rule of law as closely as we possibly can.

You spoke a number of times about the issue of rights and fairness. Over the last decade, we're talking about approximately 100,000 to 120,000 refugees who have come to this country and have been accepted, of which there were only 600 in the last decade.... Two ships have come here with approximately 600 people, and you've spent a great deal of time focused on the rights of those 600 individuals, while not acknowledging and complimenting the fact that between 100,000 and 120,000 refugees in fact have had those rights, in the same aspect that you're talking about.

So what we're concerned about here is only one small part of the bill, which gets at the irregular arrivals. I think it's important to note that we are talking about...less than half a per cent of the impact of our system within this bill is focused on those who come as different arrivals—other than by land or off-land.

I come to this point because currently we have over 40,000 individuals who have claimed refugee status in Canada and who we can't find. We don't know where they are. We have over 2,000 individuals who were approved for permanent residency or refugee status and actually got it by basically cheating the system, by not being forthright and honest about their perspective—or at least their claim.

For me, when you say we have to protect the rights of an individual, we also have to protect the rights of Canadians, and my concern is that we cannot.... I know it's important that everyone is as equal as we can potentially come to, but there is a balance that gets struck when we have over 40,000 people—and that's why I believe the system is broken—who we currently cannot locate. We do not know where they are. Now, we don't know if they present a danger to society; we won't know until something actually happens. But then...and there, I think, is where the rights of Canadians as individuals are and that we as a collective have to ensure. The government's responsibility is to protect those rights as well.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you, Mr. Chair.

Thank you to our witnesses as well. Going back to the motivation for this bill, we've heard some government members say it's to deter the asylum seekers from coming in large numbers, and we've heard others many times say it's not about deterrence.

In your expert opinion of the bill—and we know that Bill C-11 still hasn't been implemented and Bill C-31 is now being pushed through—what do you think is the motivation? Either one of you.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

In listening to both presentations, but Catherine's in particular, I can't help but think that here we are passing Bill C-31, or we're here in committee with the expectation that the government is going to want to pass this bill, but hopefully there will be a series of amendments to the bill.

You paint a fairly bleak picture. In essence, you're saying that Australia's system has clearly demonstrated its failure, specifically in and around that whole mandatory detention question. We seem to be going further than what Australia is actually currently putting in place.

My question to you is, do you think this is in fact a bill that can be amended, or should it just be sent back? Should we allow the previous bill, Bill C-11, to go forward and just go back to the drawing board? What would be your suggestion?

[Sharalyn Jordan]

Bill C-11, the Balanced Refugee Reform Act, provided for consultation with human rights groups before a country could be designated. That's one of the measures that's been removed in Bill C-31.

So yes, I do see that as one of the problems with the way that the designated country list has been included in Bill C-31.

[Sharalyn Jordan]

Thank you.

On behalf of all my colleagues at the Rainbow Refugee Committee, I want to thank you for giving us the opportunity to share our point of view on Bill C-31.

Rainbow Refugee supports efforts to create a fair, efficient, effective, and affordable refugee system. We share goals of upholding the integrity of refugee determination. In 2010, we were grateful for the opportunity to discuss Bill C-11 with this standing committee and we took notice when parliamentarians worked together and listened to those of us who work closely with refugees to revise what is now the Balanced Refugee Reform Act.

Rainbow Refugee is disturbed to see that Bill C-31 resurrects measures that we identified as problematic, and includes new measures that disproportionately harm lesbian, gay, bi, trans, and queer refugees. These concerns are based on a decade of experience focused on this work.

Canada has been a global leader in refugee protection for those facing persecution due to sexual orientation or gender identity. We were the first country to recognize that transphobia and homophobia can result in persecution; 21 countries now do the same. This protection is vital in a world where 76 countries continue to criminalize lesbian, gay, bi, and trans people.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much.

Yesterday we heard some numbers being thrown around about the processing of the Roma and the kind of impact they're having, and so we have asked our analysts to provide the whole committee with some data so we're actually talking about the facts rather than numbers that seem to change quite frequently.

One of the other things, as you are both aware, is that we have Bill C-11, which was agreed to by all parties. It hasn't been fully implemented. In Bill C-11 there is a provision to detain someone. Obviously our current system allows us to detain someone until identification takes place. Even under the current system, we have this huge shortage of detention spaces and, from the picture you and many others have painted over the last few days, some of the conditions in these detention places, prisons, are not those where we would want to have people housed, especially asylum seekers who are coming from very dangerous areas. There is a cost to the taxpayer.

Could you expand a little bit more, Ms. Nakache, on what was in the Auditor General's report and on the cost of buying space in prisons?

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

Actually, the purpose of detention is to ensure that before individuals go into Canadian society we have an understanding of who they are and whether they are qualified refugees or in fact they are not refugees. As we found with the Sun Sea and the Ocean Lady, people aboard those ships were actually war criminals or terrorists.

Part of it, from our perspective, is the importance of identifying individuals who are claiming refugee status and understanding who those individuals are and what their past is all about. It's an issue of safety.

Let me be clear. In the last decade this has made up less than 0.5% of what our refugee system is all about. When we talk about a refugee system overall—you pointed it out, and I'm proud to hear that even as far away as Australia, Canada is considered to have one of the best refugee and immigration systems in the world—it doesn't mean that we are fixed or we shouldn't be improving it.

Part of the problem is that less than 40% of those who apply for refugee status actually achieve that refugee status in the country. The system itself is so broken that it takes upwards of two and a half years on average to get an initial response to a refugee claim.

We have individuals who lose their refugee cases after three or four sets of appeals. They've spent seven or eight years in this country. They get married here, have children, purchase homes, have jobs, and they're forced to go back to their country because they've failed to qualify as a refugee. Our system is such that we need to fix it.

We just had a witness from the embassy who acknowledged that Hungarians in the thousands were coming to Canada because it was an easy system to take advantage of. The list of what is required to be humanitarian doesn't include that we're easy to take advantage of, that the rest of the world sees us as easy pickings.

Under C-11, which you'll hear some of the opposition members indicate is being replaced by C-31...but clearly 70% to 85% of C-31 is actually what C-11 manufactured. Within C-11 is an additional 2,500 refugees who are coming to this country, of which 2,000 are privately sponsored and 500 are government sponsored. That puts us in the top two or three per capita in the world.

Our system needs to be fixed. It needs to be set in order; it hasn't been in many years, almost decades. But at the same time we still want to maintain—and I hope you understand this government's intention as far away as Australia—the integrity of that system and in fact ensure that it remains one of the best systems in the world.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much.

I want to thank both of you for taking the time to come and make a presentation.

We've had a number of our witnesses here talking about the designated country of origin. Both of you have really impressed me with your rational approach to it, saying that there is kind of a space for designation, but it needs to be done by a panel of independent experts.

Actually, when you look at Bill C-11, which was the great Canadian compromise that took place only a few months ago, that's exactly where it was at then.

I just want to get on record, did I hear both of you say that?

[Andrew Brouwer]

Thank you you for that question.

We have a range of concerns relating to the designation of countries of safety. It's our first position that it's never appropriate to designate a particular country as safe. Refugees may come from any country in the world, and the reality is that conditions change quickly in countries around the world, so a country that was safe may overnight become very unsafe. The result of the designation is that those people will be denied access to the kinds of protection that Canada should be providing.

In terms of some of the changes that have been proposed in Bill C-31, even as compared to Bill C-11 the last time around...at least the last time around there was to be an advisory committee that included outside advice on which countries were or weren't safe and should or shouldn't be designated. The minister has taken out any access for external advice and turned it into a completely insulated government decision, and we have huge concerns about that.

Beyond that, UNHCR has commented about the designation of countries. My understanding about their position is that they have said that in certain circumstances it may not be inappropriate to accelerate claims from some countries, but even the UNHCR has consistently said that an appeal has to be there even if you're going to designate a country. Bill C-31 takes that appeal away, and, as I mentioned earlier, not only does it take that appeal away, but there is also no real access to Federal Court for people from designated countries.

We're also concerned about the changes at the IRB, about the fact that decision-makers at the Refugee Protection Division now will be civil servants, not people who are put there for a fixed term with some degree of independence. They are now going to be the only people hearing claims from people from countries that their boss has designated as safe. We have concerns about how that is going to be impacting their ability to make impartial decisions on refugee claims before them.