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.

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

Thank you.

The provisions in Bill C-31 don't prohibit genuine refugees from sponsoring their family members or acquiring permanent residence; they merely impose a waiting period.

What's wrong with that? Do you think the government's attempt to strike a balance, as they say, in this regard is legitimate?

[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.

[Prof. Sharryn Aiken]

Yes.

Again, I focus on the package of provisions that Bill C-31 is attempting to address. You're talking about timelines. There's no issue from an international law perspective about acceleration, as long as the claimants have adequate time to prepare for their hearing. The question is, what else are we saying? Are we denying them the right to appeal? Are we denying them the right to access counsel? Because effectively they'll have no opportunity. Those are the concerns. It's not the notion of expediting the claims in and of itself that we're concerned about.

[Prof. Catherine Dauvergne]

Well, I would certainly be pleased to see the whole bill withdrawn. I can't deny that. I just don't think the mandatory detention provisions in Bill C-31 can be saved. I don't think they can be brought into compliance with the Constitution or with international law, and I think the provisions for designating a foreign national go hand in hand with those mandatory detention provisions.

On the west coast, when the boats arrived, the refugee lawyers group in Vancouver really had problems staffing detention reviews. The Department of Justice couldn't deliver detention reviews, although we ran them until midnight every night. So it might make sense, and hence I have suggested in the case of mass arrivals, that in order to allow any government to remain in compliance with its own law, a different timeframe—going to 20 days, 25 days, 30 days—for detention reviews for mass arrivals is an amendment that would allow the government not so frequently to be in breach of the law, as it has been in the case of recent boat arrivals.

But certainly with regard to mandatory detention, I think these provisions should be withdrawn entirely.

[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?

[Prof. Catherine Dauvergne]

Australia created a system in 2001 in which individuals who arrived on boats were denied family reunification rights and were given only temporary protected status that could later be turned into protected status. It is worth noting that in Australia, somebody who gets protected status, except for between 2001 and 2007, becomes a permanent resident on that day. It's a complete determination that is quite different from any Canadian scheme.

What happened in 2001 when the decision was made that people who arrived on boats would get inferior protection? Until 2001, most people arriving on boats in Australia were able-bodied young men, to put it bluntly. After the change, when family reunification rights were cut off, the people arriving on boats were more likely to be family groupings, with a greater number of children and their moms. This is a real issue in Australia, because people drown every year doing this and it puts different communities at risk. It was also very clear that people seeking protection were willing to take this risk because they were in very difficult circumstances.

Those particular provisions about having only temporary protection and no right of family reunification were removed from Australian law in 2008 because of the harm they were causing to people seeking protection. The removal of family reunification rights is one thing that is directly targeted at people who are designated foreign nationals under Bill C-31.

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

The great Canadian compromise that's been talked about a lot but has never really been implemented is Bill C-11 in its entirety.

I know you talked about Australia a fair bit. In 2008, Australia reformed their immigration system because they saw there were some flaws in it. Can you explain the problems with Australia's past immigration policy, and how Bill C-31 will have the same problems?

[Professor Sharryn Aiken, Associate Professor, Faculty of Law, Queen's University, As an Individual]

Thank you.

Good morning. I will address the anti-smuggling provisions and designated foreign national regime as well. I intend to focus somewhat specifically on the case of the Sri Lankan Tamil refugee claimants who have arrived in Canada over the last few years.

I want to say at the outset that I endorse and rely upon two briefs primarily—that prepared by Amnesty International, in particular part I of that brief with respect to anti-smuggling provisions, as well as by the Canadian Bar Association, particularly part VI, addressing the designated foreign nationals regime. For those reasons I won't rehearse the provisions in those two briefs but point you to them.

Bill C-31 would impose multiple penalties on claimants as well as protected persons designated as part of an irregular arrival. As you know, the penalties include mandatory detention without access to review for 12 months; the denial of the right to apply for permanent residence status or family reunification until five years have passed since a favourable determination of their protection claim; denial of access to relief based on humanitarian and compassionate grounds, temporary resident permits, or refugee travel documents for five years or longer; and finally, denial of the right to appeal an unfavourable determination of a protection claim to the newly established Refugee Appeal Division.

It is my view that the minister's discretion to designate is overly broad. It's not limited to mass arrivals, and it may be applied retroactively to March 2009. Arrivals of two or more persons “by irregular means” could attract designation.

Let's be very clear: the genesis of these provisions was a response to the arrival of two boats off the coast of British Columbia, the Ocean Lady in the fall of 2009, followed by, almost a year later, the MV Sun Sea. These provisions have been specifically targeted to the case of the Sri Lankan Tamil refugee claimants. If we have any doubt, the proposal to make them retroactive to March 2009 should leave no question lingering.

I will say more in a few minutes about that, but I want to emphasize that in my view these provisions are unconstitutional and violate a number of important provisions in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, as well as the 1951 refugee convention.

These violations are detailed very thoroughly in the CBA and Amnesty briefs, as well as in the May 3 submission of the Canadian Association of Refugee Lawyers, “Canada Must Protect, Not Punish, Refugees”.

I want to urge quite simply, and in the most forceful terms, that we ensure that these provisions are eliminated from the final version of Bill C-31. It is my view that no amendment or incremental improvement around the edges should be acceptable. I want to point out that existing tools within the Immigration and Refugee Protection Act are more than adequate to deal with genuine concerns about mass arrivals.

Let's look at how the system responded to the two boats off B.C.

Refugee claimants were detained until authorities were satisfied that they knew who they were and/or that they didn't pose any security risk. Those for whom there were still concerns remained in detention until those concerns were addressed. It's true that detention reviews are supposed to take place within the first 48 hours. It's merely a review; it doesn't mean that somebody gets released after 48 hours. Indeed, as I mentioned, many refugee claimants were subject to prolonged detention while authorities addressed concerns about who these people were and whether or not any of them posed a genuine risk.

For people on those boats with respect to whom there were security concerns, the government had ample tools in its legislative tool box to designate them a risk and use admissibility procedures before the Immigration and Refugee Board to bar access to the asylum procedure altogether. Indeed, a number of people, particularly those arriving on the Sun Sea, faced those very procedures.

What I want to emphasize is that concerns about irregular arrivals are legitimate. It does pose an enormous burden on a government to process a large group of people who all arrive together—when it's some 500 people, for example—but we have the tools to deal with it, and they work, quite frankly. I see no reason to impose what in my view would be an egregiously draconian set of provisions on people, many of whom may end up being genuine refugees. I want to say that at the outset.

I want to go back to the situation of the Sri Lankan Tamils because there seems to have been much misunderstanding with respect to the causes and conditions that led these people to assume risky voyages in the first place and to brave several months on the high seas to come to Canada.

Sri Lanka, as you may know, is a country that has been wracked by ethnic conflicts that spiralled into civil war, the roots of which can be traced to the period immediately following the country's independence. For 30 years, this civil war was brutal. Atrocities were committed by all parties to the conflict, but we need to keep squarely in view the fact that the primary driver of that conflict was the Sri Lankan state's failure to recognize minority rights within that country: its failure to grant its Tamil citizens, some 18% to 20% of its population, equal rights.

With intermittent ceasefires when conditions appeared to ameliorate, things improved. However, overall, there were significant rates of disappearances, extremely high rates of torture and detention, and a complete lack of accountability throughout the course of that civil war.

The war finally ended with the defeat of the LTTE in May 2009, but as the International Crisis Group has noted in a series of reports over the past three years, including two very recent briefs in March, we see neither peace nor even modest steps toward genuine reconciliation in that country. Indeed, there is deepening militarization in the north and a policy of Sinhalization, a policy that explicitly privileges the majority ethnic group and continues to systemically disadvantage Tamils and Muslims, the two minority groups in Sri Lanka.

Now, recent media reports have suggested that acceptance rates for Sri Lankan Tamils have plummeted. I'm making reference to a recent report in the National Post, but in reality, Sri Lankan Tamils were accepted at the rate of some 57% in the last year. Of all claims made by Sri Lankan Tamils, 57% were accepted. That's a very significant number. Yes, it's down from the high of some 91% of positive claims in 2009, but it is still a very significant number.

I put a call out to refugee lawyers across the country when I realized I would have the opportunity to appear before you today, and I asked them to send me the positive decisions they've received with respect to clients they've represented from the Ocean Lady or the Sun Sea. I had an opportunity to review four such decisions very recently, four positive decisions, three from the Sun Sea and one from the Ocean Lady, and I want to share with you some of the observations made by the board members in those cases.

They include observations such as this one: that the Sri Lankan government continues to screen and check former Tamil Tiger members and those it has suspected in the past of being a Tiger member or supporter. This is seen as a pre-emptive strategy to discourage Tamil radicalization.

Suspected Tiger members and rehabilitated Tiger members are regularly subjected to rearrest or harassment or are forced to act as informants for the military. The new detainees are often not formally charged. Many are tortured.

Under the Prevention of Terrorism Act, government officials who may commit wrongful acts such as torture are provided with immunity from prosecution. Legal proceedings against government officials are prohibited if an individual acted in good faith.

The long and the short of it is that human rights violations persist in Sri Lanka to an enormous extent.

Do Sri Lankan Tamils have a choice in terms of what to do? Those who are able to get on a plane and fly to Thailand, Malaysia, or Indonesia, or to take a voyage to India, find themselves languishing for years. In Thailand in particular, I want to emphasize, there are still at least 60 people in detention in deplorable conditions, without adequate hygiene or nutrition.

They are told to join the queue, yet there is no queue. These countries are not signatories to the UN refugee convention, and at best they wait for years.

[Professor Catherine Dauvergne, Canada Research Chair in Migration Law, University of British Columbia, Faculty of Law, As an Individual]

Good morning, and thank you for the invitation to speak with you this morning about Bill C-31.

I have been doing research into immigration law in Canada and Australia for nearly 20 years now. I teach refugee law in both countries.

This morning, I am going to talk about the mandatory detention system that is in effect in Australia.

I am also pleased to take questions on any aspect of Bill C-31.

I would like to thank you for having the presentation I will be making this morning translated for me. Given that 10 minutes goes by very quickly, I am going to begin by making a recommendation.

I'm just going to turn to the final point I want to make.

Australia now has more than two decades of experience with a mandatory detention scheme for people seeking refugee protection. Almost everybody seeking refugee protection is detained at some point. This system has not achieved its deterrence objectives. It has harmed many people and it has cost thousands of millions of dollars. In some respects, as I will detail momentarily, it is not as severe as the Bill C-31 proposals. For this reason I recommend to you that Bill C-31 be amended to eliminate the designated foreign national regime and to eliminate the mandatory detention scheme.

Recognizing that mass arrivals do provide serious challenges for any government, I recommend as an alternative to these provisions that you consider, in the case of a mass arrival, which is to be defined as a group of more than 50 individuals, where there is potential reason for detention under the current IRPA provisions—for example, when there is a difficulty establishing the identity of individuals—that if a group of more than 50 has arrived at the same time, the schedule for detention reviews be amended to allow for adequate and appropriate consideration of those individuals. The current detention regime requires reviews at 48 hours, 7 days, and 30 days, as you are aware. In the case of a group of more than 50 people arriving, it would be appropriate to alter this schedule to have an initial review at 20 days, a subsequent review at 25 days, and then move on to the ordinary scheme of reviews at 30-day intervals for any individuals who would still be detained after 45 days.

You will have heard from other witnesses about the first two reasons to reject the proposed mandatory detention scheme. This scheme is in breach of several provisions of the Charter of Rights and Freedoms, and it also is in breach of key international human rights documents to which Canada has long been committed. What I will focus my time on this morning is the evidence from Australia.

Australian evidence has now established that the detention regime there is not deterring people from seeking refugee protection in Australia. The evidence from Australia also demonstrates that this type of detention leads to lasting harms to individuals who are subject to it.

The mandatory detention regime for all unauthorized arrivals to Australia began in 1989. The majority of those who arrive in Australia without a visa are briefly detained, but most people are now granted a bridging visa—some, if they arrive at an airport, within a matter of days. For boat arrivals it's usually within two or three months. This bridging visa serves to release people from detention into the community.

Since 2001, Australia has had two separate streams for offshore arrivals and for mainland arrivals. As of January of this year, which is the midpoint of the Australian fiscal year, there were 4,783 people in one form or another of immigration detention, including community detention, which we would call release on conditions. The estimated spending for the current fiscal year on immigration detention in Australia is $629 million Australian, and that is pretty close to par with the Canadian dollar right now.

The Australian detention regime has been under active scrutiny since 2008. Some of the changes that have been made to this scheme include a move towards community detention rather than detention centres.

Children and families, as a matter of policy, are not to be held in detention centres. They are housed in special alternative places of detention, for the most part. The parliamentary inquiry that reported in March of this year found that there were still a few children in detention, but it's against policy.

Immigration detention is now officially considered to be a last resort in the Australian scheme, and all immigration detention is to be for the shortest possible time. The newest parliamentary inquiry in Australia is recommending a maximum of three months of detention time.

If we look at a comparison between Australia's immigration detention scheme and the scheme that would result in Canada from Bill C-31, we find that they are similar, in that there is a two-tiered system that is punitive to irregular boat arrivals.

In Australia, the time for people to be in detention is theoretically indefinite but presumptively shorter than 12 months. The Bill C-31 scheme is 12 months, but theoretically indefinite, so there's longer detention there.

Children and their families are not to be detained. The Canadian proposal, by contrast, says that young children will not be detained but may be separated from families.

In Australia, those who are in detention have priority processing for refugee claims in order to ensure the shortest possible time in detention. There is no such priority under Bill C-31 for people detained in Canada.

In the Australian scheme, anybody who is held in detention and making an asylum claim is granted legal aid for the preliminary and subsequent merit review stages of the asylum process. There's no guarantee of legal aid support in the Canadian proposal, Bill C-31.

It's also notable that Australian experience over the past 10 years has shown that a very high number of individuals who arrive on boats actually end up with refugee status; the appendix to the parliamentary report says 90%. I recall earlier figures suggesting it's closer to 80%, but that is still a very high acceptance rate, demonstrating that people who make these kinds of journeys are in fact those who are the most desperate.

The Australian mandatory detention regime has been found, in a number of inquiries, to breach both international and domestic human rights. It has not reduced the number of people coming to Australia to seek protection. There is a new study out of Monash University—which is not yet published, but which I heard about at a conference about three weeks ago—suggesting that the variations in rates of people arriving in boats in Australia can be completely attributed to conditions in sending countries, as well as weather conditions, rather than changes in Australian law.

There have been four major inquiries into the effectiveness of the Australian system since 2001, adding tens of millions of dollars to the cost. The evidence, which is now widely accepted—and this is reflected in the parliamentary report—includes the following: there are very high levels of suicide and other self-harm behaviours among the detained community; there are very high levels of depression and of post-traumatic stress disorder; these mental health problems affect the refugee determination process and make the process more difficult to manage; prolonged detention exacerbates previous trauma; and the detention regime harms family relationships and children's mental health in particular, whether the children are in detention or separated from their families because of detention.

Current developments in Australia include a commitment to move to community detention rather than closed facilities, both because of reduction of harm and because of reduction of cost, which has proven quite persuasive.

There was a temporary regime in Australia from 2001 to 2007 that restricted family reunification rights for people arriving on boats. This regime has been dismantled, so this is a departure from the direction that Bill C-31 is heading in.

There has been extensive work to improve conditions within detention centres. The bridging visa program has been expanded, with a sharp uptick since last November, so that more people are getting out of detention.

Last, the parliamentary report on Australia's immigration detention network was just released this past March—so a number of weeks ago—running to 356 pages.

I'll conclude there. Thank you, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Good morning.

This is the Standing Committee on Citizenship and Immigration, meeting number 40, on Monday, May 7, 2012. The orders of the day, pursuant to the order of reference of Monday, April 23, 2012, are Bill C-31, An Act to amend the Immigration and Refugee Protection Act and other acts. This meeting is televised.

We have our first panel with us today; it has two members. We have Professor Catherine Dauvergne. She is the Canada research chair in migration law at the University of British Columbia Faculty of Law.

I understand you have a PowerPoint presentation, which we'll be watching.

Professor Sharryn Aiken, good morning to you. She is from the Faculty of Law at Queen's University. I went there, but I think it was so long ago my picture is down in the basement.

It's a pleasure to have both of you here. You each have ten minutes to make an introductory statement, and then there'll be questions from the committee.

Professor Dauvergne, you may proceed first.

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

Thank you, Chair.

I do want to express my empathy for the passion with which you make your presentation and the work that you do on behalf of your community. I think we all come from backgrounds that suggest that we have cultures within Canada and those that we support. My parents both came here from the Netherlands and certainly I do find myself at times overly protective of the Dutch and want to stand up for them at every opportunity. So I want to emphasize that we understand what you're saying and appreciate what you've brought to the table both in terms of your suggestions and your passion.

I do want to ask a few questions about the issues that we face as a government. While we try to use as much empathy as we can when making decisions, we do have to make legislation and move that legislation forward, and that's done through words, not necessarily through emotion.

One of the issues we face with Hungary is that back prior to the year of 2008 when there were visa restrictions within Hungary, the applications we received for asylum seekers were in the neighbourhood of 20 to 30 people a year. In 2009 there were 2,500 and in 2010 there were 2,300. These numbers just went through the roof. When we see that 95% to 98% of those individuals come to Canada for a period of up to 10 to 12 months, and just prior to their hearings taking place at the IRB, they do not show up for those hearings—or we find they have returned to Hungary—that is an issue. I think you would agree with me that a number of those individuals didn't come here to seek refugee status. They came here for different reasons. I won't label what those reasons are but they weren't for reasons of seeking asylum.

How would you deal with that issue other than how we're dealing with it through Bill C-31? This isn't specific to Hungary. We face similar types of issues with all countries. Before we implemented the restriction with respect to the visa for Mexico, the numbers were just going through the roof. They were astronomical. We had over 10,000 applications in 2008, of which 400 were deemed to be successful refugee applications. All the rest were not.

So we need a fix. We need to solve this problem because it's clear that there is an opportunity for people to take advantage of the system here in Canada.

[Maureen Silcoff]

The primary concern, I think, is the DCO list. In an ideal world, we would remove it completely. We know this is not likely, so in terms of what's actually possible, we would much prefer to go back to the criteria in Bill C-11, where there was a human rights expert panel that would decide the criteria as to whether a country was safe, as opposed to the current system of statistics.

We also believe there's insufficient time, as other people have said, to file the BOC and to have the hearings. Important criteria, as well, are the restrictions that flow from the designated country list. There is the lack of a refugee appeal division, RAD, and the inability to stay in Canada while judicial review is pending. These two criteria are new to Bill C-31. We would ask that they be removed.

[Frank Valeriote, Liberal, Guelph, ON]

Thank you, Mr. Chair.

I'm curious. I think most of us appreciate the passion with which you've made your presentation. This hearing today is specifically about Bill C-31. In the next five minutes, could either one of you address specific changes that you think need to be made to the legislation that's before us? Having considered your plight, now we need to hear from you about the specifics of the bill that you'd like to be changed.

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

Thank you, Mr. Chair.

Just before I start asking my questions, I would like to emphasize the fact that the witnesses are here to be heard. We must show our respect to our witnesses, whoever they may be.

We had a witness yesterday, a woman from Australia. She told us about her concerns about Bill C-31. In fact, a similar bill has been implemented in Australia particularly with respect to mandatory detention. She told us that this mandatory detention has significant economic and social costs, particularly for children.

My question is for either one of you. What type of mental and physical health risks are there for children who are detained in the longer term? Under this bill, some children will be separated from their family. What are the consequences of this kind of separation on their health and their subsequent reintegration?

[Dr. Richard Stanwick]

The decisions about the risks and what steps to be taken have to be left to the elected officials sitting around this room. If you have to impose these conditions, and you believe there is a risk to the community, we're asking you to keep in mind how vulnerable children are and take steps to protect them. If you are going forward with Bill C-31, then we have made recommendations that, if this is the request and this is the appropriate course of action that this government decides, you please keep children in mind when you're housing them, their education, and all those things.