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.

[Andrew Brouwer]

Okay.

We can't afford to make mistakes. When it comes to refugee status determination, we have to make sure that we have at least one solid mechanism to make sure there's a remedy for that mistake. Bill C-31, as it stands, does not provide that for many categories of refugees.

Thank you very much.

[Andrew Brouwer]

Thank you.

A mistake in the refugee determination system can cost a life or expose a fellow human being to torture, persecution, arbitrary detention, or even death, hence the absolute necessity of an effective safety net. Under Bill C-31, some refugees will have a safety net by way of an appeal to the Refugee Appeal Division and an administrative stay while they seek leave for judicial review in the Federal Court. But some won't.

While there are clearly issues with how the RAD will work and the impact of unworkable time lines combined with increased detention, the fact that there is at least a mechanism for an appeal is absolutely central, and it's what we need in Canada under the obligations we have under international law and the charter.

An effective appeal on the merits of the claim is a fundamental requirement under international law. It's something that's been recommended repeatedly by UNHCR, the Inter-American Commission on Human Rights, and many others. Bill C-31, while it maintains the RAD, will, however, deprive some groups of refugees of access to the RAD, namely nationals of countries that have been designated as safe by the minister, anyone the minister has designated as an irregular arrival, people who are admitted to Canada under an exception to the safe third country agreement, and those whose claims have been designated as manifestly unfounded by the refugee board. Not only that, but these same refugee claimants will be denied real access to the Federal Court for judicial review. That is, while they still nominally have the right to seek leave for judicial review of the Federal Court, they won't benefit from an administrative stay while the court considers whether or not to look at their case, as they do under the current system.

In most cases, if the minister is successful in speeding up the process, as he intends to, refugees who fail at the refugee board will be deported long before any Federal Court judge lays eyes on a leave application. Further, the jurisprudence of the Federal Court and the Court of Appeal is clear that once a person has been deported, a Federal Court judicial review application in respect of the risk assessment is moot. There's no point in looking at it because the person has already been deported.

This is crucial—this bit of information and this relationship between access to the RAD and access to the Federal Court—because it shows you that contrary to information that the minister has provided, and I apologize for being political, the fact is that in reality there are certain groups of refugees who will have no access to any review of the first-stage decision on their refugee claim.

With the one-year bar on the PRRA and the bar on access to H and C consideration, the reality is that there will be no effective mechanism whatsoever at law to remedy mistakes that have been made by the first decision-maker at the refugee board. That, in my submission, is contrary to fundamental international human rights law. It's also unconscionable. I think that as Canadians, all of us agree that we don't want mistakes made when it comes to refugee determination. We need to make the decision right.

Just to be clear, how much time do I have, Mr. Chair?

[Carole Dahan]

Thank you. Thank you for inviting us to present before you.

My name is Carole Dahan, and I'm the director of the refugee law office at Legal Aid Ontario. This is my colleague, Andrew Brouwer, a staff lawyer at the RLO.

As I said, we're a staff office of Legal Aid Ontario, and we're a very small office; there are five lawyers and five support staff. About 50% of the work we do involves persons in detention. I have visited the immigration holding centre, the IHC, that was spoken about this morning on numerous occasions, and I concur with Janet Cleveland's assessment of it as a jail, and certainly not, as Minister Kenney has characterized it, as a hotel.

I'm not going to spend my precious minutes talking about the IHC, but if any members have further questions about the IHC or about the provincial jails where detainees are also held, we have lots of experience with those facilities and I would be happy to address that later.

In the work that our office does with detainees, we're often the last resource, the last chance for representation of the most vulnerable clients. Many of our clients have, for one reason or another, been unsuccessful in their refugee claims and are facing imminent removal. Because we are a very busy and very small office, we only take cases where there is evidence that the person is at real risk of persecution.

For example, one gentleman who found us while at the IHC had come to Canada from war-torn Chechnya and had made a refugee claim right at the airport. He was one of the lucky ones who had the presence of mind to bring a number of documents establishing his identity when he was fleeing. They were submitted to the IRB, and they in turn submitted them for what's called forensic testing, because of the prevalence of forged documents coming from that area of the world. The IRB lost the documents before they were ever forensically tested. While they accepted his Russian citizenship, they found that he was not a convention refugee because he had failed to establish his identity as a Chechnyan.

Shortly after that, he began the process of trying to get a new document, a new birth certificate. He contacted his sister, but because we were dealing with a war-torn nation at the time—his house had been bombed and been burned down—his sister had to travel to another city, to the registrar of births, to obtain a new birth certificate. In the meantime, he was served with what's called the pre-removal risk assessment, his PRRA, which he completed himself, but without this new evidence, it, too, was rejected.

The new evidence arrived 17 days after his PRRA was rejected. It was at that moment that he found us, while detained, and we were able to assist him in submitting a new, second PRRA, with the new birth certificate that conclusively proved that he was, indeed, Chechnyan. With that evidence he was found to be a convention refugee and at long last given the protection that he was seeking all along.

Why am I telling you this story? I'm telling you this story because it illustrates several issues with respect to Bill C-31.

Number one, it shows that human errors do occur.

Number two, it demonstrates that the very tight time lines, the 15 days for the basis of claim form and the 30 days and 60 days for the hearing are simply not enough time to obtain proper and supportive documentation from back home, let alone psychological assessments, which Cécile Rousseau and Janet Cleveland spoke about this morning, or even just physical medical examinations to support a claim.

Third, it demonstrates the need for a safeguard. Even when there has been a recent negative decision, when there is new and persuasive evidence that goes to the heart of the person's claim of persecution, there must be a mechanism by which evidence can be examined and evaluated. Without it we run the risk of refoulement.

Bill C-31 would have barred my client from submitting a new PRRA for one year from the date he had received his IRB decision, and he would have been sent home to face persecution.

To be clear, I'm not suggesting that everyone be given a further PRRA after the IRB has made a decision, but when there are exceptional circumstances and when there is new evidence, then the bar should not exist. There must be a mechanism to review this new evidence before the person is sent back.

I'm very conscious of the time, so I would also add that in the circumstances there would be no automatic stay of removal. My colleague is going to talk about that in a different context. Just as now, we would have to convince either a removal officer to defer the removal, pending the new PRRA, or we would have to convince a Federal Court judge to defer the removal pending a new PRRA. So we're not adding another layer to the process, but we are asking that the one-year bar be reconsidered.

I have some other recommendations that I'm happy to share with you later.

Citizenship and Immigration

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I am pleased to rise in the House today to present three petitions. The first petition concerns Bill C-31 on refugee reform.

The petitioners point out that there are serious concerns about the measures to curb human smuggling and that it would punish refugees, including mandatory detention for certain refugee claimants, along with unchecked ministerial powers to designate countries of origin, eliminating provisions for advice from independent experts.

The petitioners call for the legislation to be replaced with legislation that is fair, independent and in compliance with the Canadian Charter of Rights and Freedoms and Canada's international obligations.

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

Okay.

Like other countries, Canada is a signatory to the Geneva convention and being a signatory means having a legal and moral responsibility. Now, the government tells us that Bill C-31 will give refugees more protection. Do you share that opinion?

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

Thank you, Madam Chair.

My thanks to the witnesses for joining us today.

Yesterday, one of our witnesses mentioned humanitarian principles in connection with Bill C-31. He reminded us that, when refugees seek protection, they want to come to a country founded on freedom and the rule of law, a country in which they want to ask for protection. They do not come to take advantage of the system, there is no doubt about it. This is about human dignity above all. He stressed this in his conclusion when he said that they come here in order to subsequently serve Canada. I just wanted us to remind ourselves of that.

In addition, some witnesses have told us that Bill C-31 is not the best way to discourage smugglers or to stop human trafficking. In your opinion, what are the greatest threats associated with this bill?

[Dan Bohbot]

In my view, Bill C-31 actually will give enormous discretionary power to the minister who, in my opinion, will go beyond transparency and justification in order to obtain the desired result.

Let us not forget that a large percentage of claims from European countries, such as the Roma from Hungary, were accepted before people started making speeches characterizing them in advance as bogus refugees. After the political speeches from the Minister of Citizenship and Immigration, the acceptance rate at the board went down. There is a direct cause-and-effect link between the minister's speeches and the panel's acceptance rate. Now, if you want to give him even greater discretionary power, how can it be presumed in any way other than that the rate will go down even more as a result of the political rhetoric?

[Dan Bohbot]

Mr. Weston, Bill C-11 has already been passed and it already changes the system that is designed to speed up hearings. Bill C-31 categorizes people even before they have made a claim for asylum. That is where the problem lies. The minister gives himself discretionary powers and sends the message to the panel that he himself can determine who is persona non grata.

In my opinion, this political influence on the panel's decision-making process is the crux of the problem. This is political interference in immigration matters and we should avoid it. We should trust the decision-makers and let them do their jobs.

[Dan Bohbot]

Very well, thank you. Okay, I'll continue.

On the other hand, these same people can be released immediately after their refugee claim is approved, in other words through an IRB hearing in 60 days. How can the administrative tribunal decision maker be more sure of the identity of these inmates than Immigration Canada is? It isn't realistic to think that the administrative tribunal will feel independent in light of these punitive measures.

The frequently asked questions page on the RCMP's website explains the difference between human trafficking and human smuggling:

Human trafficking involves the recruitment, transportation or harbouring of persons for the purpose of exploitation (typically in the sex industry or for forced labour).… Human smuggling is a form of illegal migration involving the organized transport of a person across an international border, usually in exchange for a sum of money and sometimes in dangerous conditions.

The minister never makes this distinction and his speech confuses the two concepts. It is very rare for refugees to be able to obtain a visa to come to Canada. Smugglers are too often the only way for refugees to leave their country and arrive here to make a refugee claim. These are real refugees from countries that do not respect human rights. These are people who have no choice because they are facing persecution.

Canada already has a tradition of human smuggling. The Loyalists fled New England to take refuge in Canada. The Underground Railroad mainly helped American slaves find freedom in Canada. Common law is the legal basis of our law in Canada. It is the result of centuries of tradition that led to the Canadian Charter of Rights and Freedoms:

Article 39. No freemen shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.

Article 40. To none will we sell, to none deny or delay, right or justice.

These are passages from the Magna Carta, which dates from 1215 almost 1,000 years ago. The Habeas Corpus Act of 1679 provided protection against arbitrary arrest and detention. A person detained had the right to know the reasons for his arrest, to challenge the detention and to obtain release.

Now I come to section 7 of the Canadian Charter of Rights and Freedoms.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 10 makes this clear:

10: Everyone has the right, on arrest or detention: (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; (c) to have the validity of the detention determined by way ofhabeas corpus and to be released if the detention is not lawful.

These quotations come from the Canadian Charter of Rights and Freedoms, and we must be proud of them.

Bill C-31 goes contrary to these principles of fundamental justice. This bill is turning back the clock 1,000 years on our principles of justice.

For example, persons designated as part of an irregular arrival and 16 years of age or older must be detained. The detention is not reviewed for 12 months and they have no access to the RAD. If the person is accepted, they cannot ask for permanent residence for five years following the IRB decision, they get no refugee travel document and they have to report to an immigration officer.

Then, for designated countries of origin, the Refugee Protection Division, the RPD, fast-tracks applications. The people involved have no access to the RAD and they cannot get an automatic stay of removal when seeking a judicial review from the Federal Court. These provisions can also be applied retroactively. Asylum seekers are therefore not all treated equally by the legislation or the justice system.

In addition, budget cuts to the IRB announced in the federal budget will have the effect of no longer providing the failed claimant with a transcript of the evidence he gave before the negative decision. The—

[Dan Bohbot, President, Quebec Immigration Lawyers Association (AQAADI)]

Thank you.

The Minister of Citizenship and Immigration speaks at great length on the independence of the administrative tribunal, the Immigration and Refugee Board, or IRB, and how the decision-makers will make independent and impartial decisions. However, Bill C-31 raises doubts about that.

For instance, the Minister of Citizenship and Immigration justifies his discretionary power to decide which countries are designated countries of origin by saying that he must be able to respond quickly to avoid a wave of fraudulent refugee claimants. He justifies this measure by saying that he wants to let Hungarians, for example, come to Canada without a visa and avoid having people make claims for refugee protection in Canada.

So it's the minister himself who decides in advance what represents a wave of fraudulent claimants. So it isn't true that Bill C-31 gives the administrative tribunal full independence in the decision-making process. The minister himself said the opposite in his testimony before this committee.

As for people who will be considered part of an irregular arrival, the Minister of Citizenship and Immigration justifies his discretionary power and detention for one year by the fact that Canada cannot let in people who have not obtained a visa before they arrive in the country. He continues to scare us with the idea that these people will not have identity documents, that their identity will have to be established before they can be released and that, lastly, people will not have recourse to automatic release as an alternative to detention. In fact, the current legislation justly sets out a detention review mechanism prior to release.

The minister went on in his testimony to explain that these people will pay smugglers to get to Canada and that the smugglers are dangerous criminals who endanger the lives of the passengers. Once again, the minister is trying to influence the fate of the refugee claimant through these punitive and discriminatory measures.

The minister is inconsistent when he explains that individuals who arrive irregularly need to be detained for security reasons for one year—

[Richard Goldman, Spokesperson, Table de concertation des organismes au service des personnes réfugiées et immigrantes]

Thank you, Rivka.

Although the Table de concertation adds its voice to stakeholders such as the Canadian Council for Refugees, which feels that Bill C-31 is so flawed as to require replacement with more balanced legislation, in order to be constructive we will be focusing on the Refugee Appeal Division and post-claim recourses, and providing our observations and recommendations on that.

First of all, the importance of a Refugee Appeal Division has long been recognized. When Parliament adopted the IRPA in 2001, it contained a Refugee Appeal Division, which was supposed to be accessible to all. In Bill C-11, this was adopted. Of course the IRPA RAD was never implemented. It's also important to bear in mind that a number of international human rights agencies have pointed out the pertinence of a Refugee Appeal Division. Quoting from page 2 of our brief:

UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process. It allows errors to be corrected, and can also help to ensure consistency in decision-making. Canada, Italy, and Portugal are the only industrialized countries which do not allow rejected asylum seekers the possibility to have first-instance decisions reviewed on points of fact as well as points of law. In the past, a measure of safeguard was provided by the fact that determinations could be made by a two-member panel, with the benefit of the doubt going to the applicant in case of a split decision. With the implementation of IRPA on June 28th, 2002, this important safeguard will be lost.

Likewise, the Inter-American Commission on Human Rights has stated:

Given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection.

I'm going to look now at the restrictions on the RAD under Bill C-31. There are four major restrictions, which I'll look at in turn.

First of all, let's consider asylum seekers from designated countries of origin. These claimants will have super-fast-tracked hearings to be held as soon as 30 days after their arrival. This will make it difficult or impossible for them to prepare their case adequately, get documentary proof of persecution, obtain identity documents, or even to secure legal counsel, not to mention overcoming the trauma of rape, sexual assault, or whatever else they may have been through. So the risks of human error in this situation are extremely high.

Second, there is the matter of arriving in Canada as part of an irregular arrival. This has no relation whatever to the merits of a refugee claim. In fact, from certain countries the only way to get out is with false documents. Passport offices may not be functioning or a genuine refugee may not get a passport. If two or more such persons arrive together, if any group arrives together with the assistance of a smuggler, they can be designated an “irregular arrival”. “Group” is not defined in the act, so it could be as few as two people, as far as we can tell. There's no logical basis for a presumption that a group of such claimants coming from, say, Iran, the Democratic Republic of the Congo, or Somalia are making abusive claims that do not merit a right of appeal.

Third, there are persons who have claimed asylum at the Canada-U.S. border already, under the U.S.-Canada Safe Third Country Agreement. Very few refugees can enter at the border and make an asylum claim. There are a few exceptions. The main exception that remains today is to have a family member in Canada. If somebody manages to enter at the border and claims asylum, he will also be subject to a restriction on his right of appeal. We really don't understand why this should be the case. As a matter of fact, in a briefing call that was held right after the introduction of Bill C-31, it was explained to us that the worst that could happen to these people is that they'd be returned to the States. Actually, that's an error. As of the expiry of the reciprocal agreement in October 2009, it's not possible to return them to the States. They would be sent directly to their country of alleged persecution, with no right of appeal. So this seems to be based entirely on an error.

With the fourth exception, “manifestly unfounded or no credible basis” claims, the above three exceptions kick in even before the claimant has been heard by the IRB.

This fourth exception only kicks in at the IRB itself. What can happen is a person who in principle has a right to appeal can have their hearing, and if the decision-maker says that the claim is manifestly unfounded or has no credible basis, they will lose their right to appeal. This strikes us as extremely perverse, because the decision-maker in effect can insulate himself or herself from review. In other words, if they make a small mistake and refuse a well-founded claim, it can go on appeal. If they make a big mistake and say that a well-founded claim is manifestly unfounded, it can't be reviewed.

It seems to us that all of these exceptions therefore violate basic principles of fairness and in some cases even logic.

It's also important to keep in mind that these same four categories will not have effective access to the Federal Court, because although it's possible for them to apply to the Federal Court, they will no longer benefit from a stay of removal. Therefore, they can be removed on day 31 or 61 and have no appeal, no access to the Federal Court in practical terms.

Other post-claim recourses are also being eliminated. The so-called pre-removal risk assessment, or PRA, wasn't a very good procedure, but this will be practically eliminated, because people will not have access for 12 months after refusal. The government has said it wants to remove people far faster than that, so practically speaking the PRA will be out the window.

Final recourse that is also effectively being eliminated is the humanitarian and compassionate recourse. This does not overlap with the refugee claim. It takes into account other things, such as gender-based discrimination, or other types of discrimination that do not rise to the level of persecution. It can also take into account best interests of the child, and so on. An exception is created in the law for humanitarian applications based on best interests of the child and medical considerations. However, no stay of removal is being provided for those cases. They can still be removed on day 31 or day 61. Consequently, as a result of these different exceptions to the RAD, there is the very unrealistic 15-day timeline for filing at the RAD. We can talk about that more.

This, along with the gutting of the other post-claims recourses, means that we may finally have a Refugee Appeal Division in Canada, and yet the majority of refused claimants will have absolutely no avenue to have their refusal reviewed.

Our recommendations are as follows. First of all, Bill C-31 should be withdrawn and replaced with fair and balanced legislation. On the specific topic of the Refugee Appeal Division, all claimants should have access to the RAD. The corresponding regulations should allow 45 days for filing and perfection of appeals to the RAD. The bar on filing of humanitarian and compassionate applications while a refugee claim is pending and for 12 months following a refusal should be removed. Humanitarian and compassionate applicants should benefit from an automatic stay of removal until such time as their humanitarian and compassionate applications are ruled upon.

Thank you.

[Rivka Augenfeld, Spokesperson, Table de concertation des organismes au service des personnes réfugiées et immigrantes]

Good afternoon.

I'll do my presentation in French, and my colleague will speak in English.

First, on behalf of the Table de concertation des organismes au service des personnes réfugiées et immigrantes, we thank you for inviting us to speak to you.

The Table de concertation des organismes au service des personnes réfugiées et immigrantes is an umbrella group of 142 community organizations assisting refugees and immigrants across Quebec. Founded in 1979, our organization's mission is that of defending the rights of newly arrived persons and families, regardless of their immigration status.

It is also important to tell you that our organizations help refugees across Quebec, under the agreement sponsored by the state, which the rest of Canada calls the Government-Assisted Refugee Program. These people are set up all over Quebec, with contracts from the Quebec ministère de l’Immigration et des Communautés culturelles.

Through our experience, we have developed considerable expertise on the question of recourses for refused refugees. We witness first-hand, day after day, the consequences of human errors in the refugee determination process and the extreme challenges of trying to have such errors corrected. We presented a brief on this matter to this committee in 2007.

Today, we are going to focus on this aspect of the provisions of Bill C-31.

My colleague, Richard Goldman, will continue the presentation.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thanks, Madam Chair.

Let me echo what Ms. Sitsabaiesan said. Everyone in this room cares about the kind of people you're talking about. I think we may be misled if we ask the wrong question. Does anyone in the room want to see someone detained without reason? No one wants to see that.

I think we have to ask the right question. We're answerable as a government to 34 million Canadians. They expect us to maintain, as it's said classically in the Constitution, the peace, order, and good government of the country.

There are provisions in this bill to minimize the unfairness. For instance, anyone can apply to the public safety minister for release if circumstances warrant.

By the way, the number one concern in the bill is stated as in the best interests of the child. Those things prevail in Bill C-31, although I think they've been—

[Dr. Janet Cleveland]

What I would urge you to do, actually, is to look at the report of the senatorial inquiry in Australia that just came out in March 2012, after a very in-depth study of their system, the umpteenth study, because they've had problems again and again and again over the years, and they have reports stacked quite high.

Basically, they found, among other things, that in 2010-11 the self-harm rate for about 6,000 detainees was 1,100 incidents of self-harm. Self-harm means self-cutting, attempted hanging, drinking shampoo or detergent to try to kill themselves, voluntary starvation, these kinds of acts, and six actual suicides. That's an extremely high rate. It's ten times the normal suicide rate in Canada, just to give you an idea. And this is a population held for less than a year in general, so not that far from what we would see under Bill C-31, quite possibly.

Basically, the committee concluded, and we quote this in our brief, that it was crystal clear that detention had disastrous effects on mental health. This has been proven over and over and over again. And now what Australia is doing, after 20 years of mandatory detention for so-called irregular arrivals, is they're moving to a system that is much closer to our current system in Canada; that is to say, people will be held essentially during identity checks at the beginning and then they will be released on what they call a bridging visa, which is actually equivalent to normal asylum-seeker status in Canada.

So after 20 years of mandatory detention, Australia said it was a failure, it wasn't working, it has been a disaster in mental health terms, it's very costly. Ninety percent of the asylum seekers who came as irregular arrivals and were detained were later accepted as refugees in Australia and have gone on to become Australian citizens. So you can imagine the cost to society is huge.

[Irwin Cotler, Liberal, Mount Royal, QC]

The government has said that Bill C-31 will end up reducing costs. But in appreciation of your testimony and others, there are extensive costs associated with mental or physical health issues, and these can be exacerbated by reason of the detention of youth and pregnant women and the like. I know you began to go into it, but do you have some appreciation of what these costs might entail, having regard to the whole spectrum of fallout from this type of detention?