Bill C-31 (Historical)

Protecting Canada's Immigration System Act

An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act

This enactment amends the Immigration and Refugee Protection Act and the Balanced Refugee Reform Act to, among other things, provide for the expediting of the processing of refugee protection claims.
The Immigration and Refugee Protection Act is also amended to authorize the Minister, in certain circumstances, to designate as an irregular arrival the arrival in Canada of a group of persons and to provide for the effects of such a designation in respect of those persons, including in relation to detention, conditions of release from detention and applications for permanent resident status. In addition, the enactment amends certain enforcement provisions of that Act, notably to expand the scope of the offence of human smuggling and to provide for minimum punishments in relation to that offence. Furthermore, the enactment amends that Act to expand sponsorship options in respect of foreign nationals and to require the provision of biometric information when an application for a temporary resident visa, study permit or work permit is made.
In addition, the enactment amends the Marine Transportation Security Act to increase the penalties for persons who fail to provide information that is required to be reported before a vessel enters Canadian waters or to comply with ministerial directions and for persons who provide false or misleading information. It creates a new offence in respect of vessels that fail to comply with ministerial directions and authorizes the making of regulations respecting the disclosure of certain information for the purpose of protecting the safety or security of Canada or Canadians.
Finally, the enactment amends the Department of Citizenship and Immigration Act to enhance the authority for the Minister of Citizenship and Immigration to enter into agreements and arrangements with foreign governments, and to provide services to the Canada Border Services Agency.

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

One of the areas I wanted to ask you about...and you have done a great job of complimenting Canada in terms of the system it has. I mean that in a very non-partisan, non-political way, because I truly believe in the system that we have, but it is in fact broken in many ways.

We've heard over the last week and a half about the thousands of individuals who are coming from the EU, claiming refugee status here in Canada by the thousands, abandoning their claims, and going back to their countries of origin. We know that there are in the neighbourhood of 40,000-plus individuals in the country right now who have either abandoned their claims or have simply not pursued them any further and are not located, either by the CBSA or by Citizenship and Immigration Canada.

We also know that there are over 2,000 individuals whose refugee applications were approved but then subsequently were found under appeal to be fraudulent or not true, and we are in the process of trying to ensure that those individuals do not remain in the country; that they are sent back to their country of origin.

So while I submit that there are great things about our system, part of the reason Bill C-31 is here is, for example, the thousands of applications that are withdrawn or simply abandoned.

In your opinion, if a claimant voluntarily withdraws or abandons their claim and returns to their country of origin, is that not an admission by the claimants themselves that they simply are not in fear of persecution in their country of origin?

[Furio De Angelis]

I'm sorry I haven't brought with me ExCom 44, which I would have read in that regard. But I have quoted it before, saying that detention is permissible; that it's possible to include a detention phase at the beginning of the process in order to exactly meet those concerns that you are referring to.

I would have liked to read it because there are safeguards anyway in that detention that would have called for a review mechanism, for instance, which is very important. So, yes, it's as you say, but Bill C-31 doesn't really comprehensively adhere to the safeguards and review mechanism that are contained in ExCom 44 or international standards at large.

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

Sure.

These are from lawyers and facts that I got from the National Post. We know that it's a very right-leaning newspaper, so if.... Anyway, I digress.

I'm going to jump to timelines, because it will change gears.

What are your thoughts or views on the timelines that have been imposed under Bill C-31 and the consequences of these new timelines?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I appreciate the presentation and I especially appreciate the detailed presentation that you provided us in written format. It's very well stated.

We do find that Bill C-31 has many, many different flaws in it. I can make reference to the mandatory detention as being something that will no doubt be taken to the Supreme Court. I expect there are a number of clauses that will in fact be successfully challenged at some point in court. I don't believe the government's done its homework in regard to that particular issue.

But there are other issues that really do concern us that I would like to receive some feedback from you on.

One is a United Nations 1951 resolution that dealt with the whole idea of two tiers or a double standard for refugees. It would appear that this legislation is establishing that. For example, if you're deemed as an irregular refugee and you're held in detention, you are not going to be able to sponsor your children. For example, even if you're deemed a refugee and you've been released out of mandatory detention, you still cannot sponsor for at least five years a child or a spouse.

I wonder if you might want to comment on that aspect, given other refugees in fact are able to if they weren't designated or they weren't irregulars. It seems to me it's a clear distinction: two types of refugees.

[Furio De Angelis]

I will answer in English, if I may.

It's very clear that UNHCR does not oppose a list of designated countries of origin. However, it must be understood that the DCO list is a procedural tool. It's not a process, only a procedural tool. We are putting too much emphasis and focus on this. It is a procedural tool that may help in certain situations to facilitate the processing of asylum claims.

What is really important is the process. In order to make a solid process in refugee status determination, there is a need for certain things to happen. Once the process is solid, a designated country list is a tool. It's a tool that may be helpful if used in a certain manner.

The process that makes for a strong and robust asylum determination system includes adequate time for submitting an application—there has to be enough time to find counsel and collect the information necessary. There has to be a first-level hearing that is solid and robust by an independent tribunal like the IRB. Of course, IRB members must be well-trained decision-makers. There must be enough resources put into research on countries of origin, because refugee status determination is a difficult art and requires continued training.

You also need a review phase, a capacity for reviewing errors, in fact and in law. It's very important to catch errors, which may lead to bad decisions and therefore refoulement.

Finally, at the end of the process, there must be a quick removal. The quick removal part of the process is the real disincentive. We are talking very much within the context of Bill C-31. If you have a solid process and a quick removal at the end of that process, you will create a disincentive, which hopefully will take care of the people who want to abuse the system.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

Before I get to my questions, I would just point out that we heard from European Union officials this morning. They told us how important it was to respect our international obligations towards refugees and asylum seekers under the 1951 Geneva convention. They also told us that the European Union could opt for sanctions against certain countries that chose not to respect such conventions.

My question has to do with the list of designated countries. The minister said that UNHCR did not object to creating a list of designated countries of origin as part of a balanced reform of the refugee system. Could you please tell us whether UNHCR agrees with the approach to designated countries of origin as set out in Bill C-31?

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

I certainly appreciate that. I'm just stating examples of where our detention legislation in Bill C-31 is actually not as aggressive as it may be in some other countries.

I think you would understand that as we were developing the policy, we did look to what other countries were doing that were not accused of being in contravention of the UN convention on refugees.

I have another example. I just returned from the Netherlands, and in my meetings with officials, I was surprised to learn about one of the aspects of detention they use when individuals destroy their documentation after they arrive at the airport. When individuals walk up to the visa officers, immigration officers, and indicate that they arrived in the Netherlands with absolutely no identification, those individuals are then held and detained at the airport until their information...or at least until information is available to determine who these individuals are.

At the airport, if they are determined, there and then, not to have an issue with respect to asylum, it is the airline that is actually responsible for flying these individuals back to their country of origin.

I'd like to get your thoughts on that. I certainly entertain the recommendation that you made that there are alternatives. I'd also point out that there are other countries that are far more aggressive than Canada in terms of detention, number one.

The second is that we're in a position of not being as aggressive as a number of other countries that we partner with in a lot of other areas. So I would submit that you would have to take a look at that when you're viewing this, because that's exactly what we did, and you're viewing other countries in terms of their detention law versus the one that we're bringing forward here.

[Furio De Angelis, Representative in Canada, Office of the United Nations High Commissioner for Refugees]

Thank you, Mr. Chair.

Mr. Chair, honourable members of the committee, ladies and gentlemen, the Office of the United Nations High Commissioner for Refugees, or UNHCR, welcomes the opportunity to comment before the committee on Bill C-31, the Protecting Canada's Immigration System Act.

UNHCR offers these comments on federal legislation further to the mandate entrusted to it by the United Nations General Assembly, in other words, to direct and coordinate international efforts to protect refugees around the world and to seek solutions to their problems.

UNHCR recognizes the strength of Canada's commitment to protecting refugees around the world, as well as the challenges that the country must address. Canada must ensure the sustainability of its system and maintain its high standards in protecting displaced individuals seeking asylum, while finding durable solutions within its borders.

The UNHCR written submission, a copy of which has been provided to this committee, provides our full comments and recommendations regarding Bill C-31.

My comments today will focus on selected provisions of the bill that will have the most significant impact on Canada's asylum procedures. These comments fall within two general themes: provisions that provide for the differential categorization of asylum seekers and provisions that have the effect of restricting access to the asylum process.

Regarding the designation of foreign nationals as irregular arrivals, UNHCR understands and shares the Government of Canada's concern about the need to combat people smugglers. Yet asylum seekers are often compelled to resort to smugglers to reach safety. The proposed designation of irregular arrivals may lead to an unwarranted penalization of those in need of international protection and, in effect, punish the victims of the smugglers or traffickers for having sought to escape persecution.

With regard to the grounds for designating someone as an irregular arrival, Bill C-31 will create two classes of asylum seekers and refugees in Canada based on the designation provision. Of particular concern is the designation for operational reasons.

Consequences of the designation that are of concern to UNHCR include mandatory detention without review for 12 months, no appeal rights, restriction on the issuance of convention travel documents—which may be at variance with article 28 of the 1951 convention—reporting requirements despite the granting of convention refugee status, and the five-year bar on regularizing status and its implications for family unity.

UNHCR recalls that the principle of family unity is enshrined in international law. The UNHCR executive committee, of which Canada is a founding member, has underlined on several occasions the need for the unity of the refugee's family to be protected. From a non-discrimination point of view, UNHCR does not believe that the grounds for designation as irregular arrivals provide a legitimate justification for a substantially differentiated treatment. The legislation may be at variance with human rights-based non-discrimination guarantees contained in international human rights instruments.

UNHCR's long-standing position has been that the detention of an asylum seeker is inherently undesirable. The situation of asylum seekers differs fundamentally from that of ordinary immigrants in that asylum seekers may not be in a position to comply with the legal formalities for entry, not least because of the urgency of their flight or their inability to approach authorities. Article 31 of the 1951 convention takes this situation into account and prohibits penalties being imposed on refugees on account of their illegal entry or presence.

The United Nations Human Rights Committee has noted that for detention to be lawful, it must pursue a legitimate governmental objective that it is determined to be necessary, reasonable in all circumstances, and proportionate in each individual case, and that detention can only be justified where other less invasive and coercive measures have been considered, and that mandatory and non-reviewable detention is unlawful as a matter of international law.

In UNHCR's view, the relevant provision of Bill C-31 as currently drafted would be at variance with several international standards. For these reasons, UNHCR strongly recommends that the government refrain from introducing a mandatory detention regime for irregular arrivals in relation to refugees and asylum seekers, and that alternatives to detention be explored.

Regarding designated country of origin, 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 the examination of applications in carefully circumscribed situations.

The designation of a country as a safe country of origin cannot establish an absolute guarantee of safety for nationals of that country. It may be that despite general conditions of safety in the country of origin, for some individuals the country remains unsafe.

It is important than an assessment of countries of origin as safe is based on reliable, objective, and up-to-date information from a range of sources. One way of achieving transparency and quality decision-making could be by ensuring that the designation is done by a panel of experts.

I now wish to turn to measures that UNHCR fears may restrict access to the asylum process.

Regarding the restriction of access on asylum on criminality grounds, in UNHCR's view asylum applications should not be considered inadmissible unless the individual concerned has already found effective protection or access to an asylum procedure in another country.

UNHCR has already expressed its views in the past over exclusion elements being examined under the heading of ineligibility or inadmissibility to the refugee proceedings. Our submission to this very committee on March 5, 2001, which set out the office comments on the Immigration and Refugee Protection Act, remain valid. UNHCR is of the opinion that exclusion from refugee status on criminality grounds should be considered in accordance with article 1F of the 1951 convention, within the assessment to determine the merits of the claim, rather than at the admissibility or eligibility stage.

Regarding shortened time limits under the new asylum process, UNHCR supports efforts by government authorities to decide applications in a timely manner. However, states need to balance efficiency with the fairness of the procedure. Overly restrictive timeframes in the context of a sophisticated asylum process can lead to increased rates of abandonment and the rise of a number of unrepresented claimants. Asylum claimants do not ordinarily have the knowledge to navigate the legal system. Even where a client retains counsel, enough time needs to be allowed for applicants to apply for legal aid and to find a counsel. The consequence of abandonment are, in effect, a final, negative decision, as there is no right to an appeal or access to a pre-removal risk assessment for one year after the negative decision. In this respect, appropriate resources should be allocated towards creating, maintaining, and supplementing legal services for asylum seekers.

Regarding the refugee appeal division, UNHCR welcomes the implementation of the RAD; however, it would recommend that an appeal be available to all claimants. The right to appeal is a fundamental requirement of a fair and efficient asylum procedure, to which no exception should be made. At the core of the 1951 convention principle lies the principle of non-refoulement, whereby those with protection needs cannot be returned to a place where they will be at risk of persecution. The purpose of a second review through an appeal mechanism is to ensure that errors of fact or law, at the first instance, can be corrected to avoid injustice and to ensure respect for the principle of non-refoulement.

Regarding restricted access to the pre-risk removal assessment and to humanitarian and compassionate applications, pre-removal risk assessments and humanitarian and compassionate applications are important safeguards against the deportation of persons who are not recognized as refugees according to the law, but who are still in need of international protection. In particular, given that many categories of asylum seeker will not have access to an appeal under the RAD, the availability of such mechanisms are all the more important to maintain as a procedural safeguard.

Regarding the reopening of a refugee claim, UNHCR maintains that claims for protection should be reopened when new evidence comes to light, including situations where there has been a breach of natural justice, to allow for the claim to be re-examined in its entirety, and recommends that the jurisdiction of the RPD and the RAD to reopen claims be affirmed.

Regarding the cessation of refugee status, the proposed amendments in the bill to bar the appeal against a negative decision on cessation of refugee status, leading to subsequent possible revocation of permanent resident status, will result in a state of uncertainty for many refugees, including resettled refugees, and thus will undermine the durable nature of the resettlement solution. UNHCR recommends the decision on cessation should be subject to appeals and should not automatically bar access to or revoke permanent resident status.

Finally, regarding the disclosure of information, in the context of refugees and asylum seekers, UNHCR recommends that appropriate safeguards be introduced in the text of Bill C-31 to avoid the transmission of biometric and other information, either directly or through a third party, to countries of alleged persecution.

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

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Mr. Chair.

Thank you to our witnesses for being here today. It was interesting to hear your comments.

We've been meeting, as you may well know, with several groups over the last little while, listening to the concerns people have either in favour or in support of certain clauses in Bill C-31. The process for us here is that in due course we'll be reviewing the bill line by line and taking into consideration this democratic input that we have from our witnesses, so your testimony is very important to us. So thank you again for being here.

I want to address the issue of a legitimate refugee who actually really needs the help, because I think that is a common element for all of us. We all want that. We all want to be able to service as quickly as possible the person who is coming here, who was persecuted, whose life was in danger, possibly facing torture or death in their own country. We're finding that a lot of these folks who need help are tied up in a system behind a group that is quite often not a legitimate refugee group, tying up the system.

To process a claim today can go as long as 1,038 days. With the measures in this proposed bill, we can reduce that to 45 days for claimants from designated countries, and 216 days for all other claimants.

One phenomena we're seeing is that we're getting, from one part of the world in particular, 95% of the claimants either abandoning or withdrawing...or their claim is flat-out rejected.

Now, that 95%, apart from the fact that it's costing about $170 million a year—let's just not put a value, because we're talking about human life here—is really tying up the people who legitimately can come into the country.

Can I get your comments on why people would voluntarily abandon or withdraw their claim and return to a country in which they originally claimed they were being persecuted?

[William Prentice]

In the first kind of case that we identified, as our volunteers tell us, we know of two situations here in the city of Ottawa, with the refugees we work with, where, if Bill C-31 were enacted and applied retroactively, individuals and their families would have their status jeopardized.

Both cases can be referred to later in testimony, but suffice it to say that humanitarian considerations compelled two refugees in two separate instances to use their passports of origin in order to travel to nearby countries to rescue family members.

In the second case, there is widespread concern, notably among our friends in the Rwandan and Burmese communities, that recent developments in their country of origin might lead to the invocation of the cessation clause, thereby putting the status of legitimate refugees in question, notably with respect to their application for citizenship.

Again, we have four examples we could give to express a more general concern emanating from our friends in the Rwandan community and from the primate's fund sponsorship of Kachin families and a Karen family from Burma.

[Laurette Gauthier Glasgow]

We know that immigration and refugee systems can always be improved. We recognize the government's underlying desire for a fair and consistent immigration and refugee system. We also welcome proposals to increase by 20% the number of resettled refugees and the funding for resettlement programs. We even welcome measures that would facilitate and accelerate the processes for the successful integration of refugees into Canadian society.

However, Bill C-31 raises several serious concerns. The Canadian Council for Refugees, amongst others, has articulated concerns with which we concur. These concerns emanate from our long-standing and practical experience with the refugee community and from our deep religious convictions to welcome the stranger and to protect the vulnerable—values that we believe are shared more broadly by others in our open and democratic society.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you for appearing before us.

Currently under Bill C-31, penalties are only imposed on shipowners. I'd like your thoughts on whether you think that goes far enough. What about people who arrive on planes?

Would you care to take a shot at that, Mr. Elcock?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Okay.

The Canada Border Services Agency cannot predict how many people might be detained under the provisions of Bill C-31. In fact, there have not been any recent mass arrivals, like those involving the Sun Sea and the Ocean Lady vessels. Obviously the bill was not in force at that time.

As far as the proposed amendments to Bill C-31 go, do you think the safe country designation could help to identify so-called fraudulent refugees?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

I want to thank the witnesses for being with us today.

One of the functions of intelligence services is to prevent acts that pose a threat to our interests and values, especially when it comes to the irregular arrival of foreigners.

What did you learn from the arrival that gave rise to Bill C-31, in other words, the situation involving the two boats off Canada's west coast?

[Roxanne James, Conservative, Scarborough Centre, ON]

Let me ask this question. Currently in the provisions in Bill C-31, where it only requires biometric data to be collected from people coming to Canada temporarily, do you believe this should be expanded to collecting data from anyone who isn't a Canadian citizen who is applying to come to Canada?

Again, for safety and whatever else with regard to the Privacy Act, biometric data would be, obviously, disposed of once they became a Canadian citizen. But instead of just people who are coming to Canada temporarily, do you believe it should be expanded to include people who are applying to come to Canada in general?

It's just an opinion question. I'm not sure if anyone has the expert knowledge; I'm just looking for an opinion.