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.

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

Thank you very much. I want to thank the three of you for coming to make your presentation.

The one thing that really hit me as you were speaking is that you brought us back to looking at the human element involved when we're talking about refugees. We are not here to talk just about the smuggling enterprise. We already have the ability to punish the smugglers, and we're all for that, but this is about the human element.

I have a number of questions, and I'm going to ask you to keep the answers brief so that I can get through to everybody.

Audrey, I have a question for you. You provided two scenarios in which people would be losing permanent resident status under Bill C-31 that they would not have lost under the current system. Can you expand on the problems in these cases, and talk about how you would amend the bill to address these problems?

[Prof. Audrey Macklin]

Okay.

On alternatives, delete clauses 18 and 19 from Bill C-31. The existing powers under IRPA already authorize the minister to seek revocation of a person's permanent resident status if it is obtained through fraud or misrepresentation. Alternatively, add a presumption in the vacation provision to clarify circumstances where a return to the country of origin shortly after obtaining refugee and permanent resident status is the basis of evidence of misrepresentation of fraud in the acquisition of that status.

Thank you.

[Prof. Audrey Macklin, Representative, Professor, Faculty of Law and School for Public Policy and Governance, University of Toronto, David Asper Centre for Constitutional Rights - University of Toronto]

Like Professor Rehaag, I want to thank you for the opportunity to appear in front of you today.

I am going to address the impact of provisions in Bill C-31 that seek to expand the circumstances in which permanent resident status of refugees can be revoked.

I have three questions that I seek to answer here. First, does Bill C-31 confer new powers on the minister? Yes. Are these additional powers necessary to achieve legitimate policy objectives? No. Can Bill C-31 be amended to align its provisions with those legitimate policy objectives? Yes.

First, it is important to understand what the status quo says. As IRPA currently exists, it is possible for the minister to seek what is called vacation of refugee protection under section 109. Vacation of refugee status is the process by which the minister seeks to revoke refugee status of somebody who never needed refugee protection in the first place. That is somebody who acquired the refugee status through misrepresentation or fraud.

If the minister is successful in obtaining vacation before the Immigration and Refugee Board, then that person's refugee status is lost as well as permanent resident status. There is a certain harmony to that, because of course, misrepresentation is also a basis for revoking permanent resident status. For refugee status lost for misrepresentation, the consequence is loss of permanent resident status for misrepresentation.

Under the current law there is also a different provision called cessation. The minister may seek cessation of a refugee status where the person no longer needs refugee protection, and the evidence from which one might infer that refugee protection is no longer required might consist of a variety of possibilities, including for example, re-availment of protection in the original country, or a change in circumstances in the country of origin such that there is no basis for currently fearing persecution in that country of origin. That's vacation, where refugee status was never needed, and cessation, where refugee status is no longer required.

Under the current law, when a claim is cessated, it does not follow that permanent resident status is also revoked. Why? That is because the person concerned has not necessarily done anything that is inconsistent with maintaining permanent resident status. There is no misconduct, as it were.

What does Bill C-31 do? It visits the same consequence of automatic loss of permanent resident status on one whose refugee claim is cessated that is currently visited on one whose refugee claim is vacated. In order to understand the difference, I want to give you two scenarios of circumstances where permanent resident status would now be lost under Bill C-31, where it would not be lost under IRPA as it currently exists.

For example, in one scenario a refugee comes from Bosnia in 1993. She obtains permanent resident status. In 2008 she returns for a year to work for an international organization in Sarajevo. She lives peacefully in Bosnia for a year, returns to Canada. Under Bill C-31 the minister could seek to have her refugee claim cessated, and if successful, the automatic consequence of that would be loss of permanent resident status.

Another example, a refugee claimant from Rwanda comes in 1994 and obtains permanent resident status. He sponsors his wife. They raise a family in Canada. At some point, let's say in 2012, the minister decides that it's now safe for Tutsis in Rwanda and so he seeks to cessate this person's refugee claim. If successful, on the basis of a change of circumstances in Rwanda, then this person's refugee claim would be lost as well as permanent resident status, and almost 20 years after the fact, that person would be automatically removable, deportable, to Rwanda.

The consequences of this amendment under Bill C-31 is deportation of people who are long-term permanent residents in Canada with no recourse, and no appeal to the immigration appeal division, for people who have done nothing wrong, and indeed, in the case of a change of circumstances in the country of origin, they have done nothing at all. They have merely been living their lives in Canada.

There are no limits to the power of the minister's discretion to exercise this new power. That puts all permanent resident refugees at risk. They will never know if, when, or why the minister might seek cessation of their refugee status.

[Dr. Sean Rehaag]

Thank you.

My name is Sean Rehaag. I am a professor at the Osgoode Hall Law School. I am here with Professor Audrey Macklin from the University of Toronto's faculty of law. Both of us work primarily in the area of immigration and refugee law.

Professor Macklin and I share many of the concerns regarding Bill C-31 raised in the briefs submitted by the Canadian Association of Refugee Lawyers, the Canadian Bar Association, and the Canadian Council for Refugees.

Rather than attempting to summarize those concerns here, though, what we'd like to do is focus on two specific issues. I'm going to speak about the refugee appeal division and Professor Macklin is going to speak about why the bill should not provide new powers to the minister to remove permanent residence from refugees.

Let me jump right into the three quick points that I'd like to make regarding the refugee appeal division.

My first point is to remind the committee that refugee determinations are among the most serious decisions that are made in Canada. If individuals who meet the refugee definition are not recognized as such, they may be deported to countries where they face persecution, torture, or even death. Because of these life and death stakes, the Supreme Court has found that refugee determinations implicate constitutional rights to life, liberty, and security of the person.

The second point I'd like to make is that all administrative decision-making processes are prone to error, and refugee determinations are no exception. If anything, refugee determinations are more likely to result in errors due to the inherent challenges of this type of decision-making. These challenges include having to make factual findings about what may happen in the future in distant countries, and having to make credibility determinations based on the testimony of claimants who may be suffering from post-traumatic stress, who often come from very different cultural backgrounds, and whose testimony is typically filtered through an interpreter.

In addition to these challenges, there's extensive evidence showing that IRB refugee decisions are all too often arbitrary. For the past six years I've published statistics on the Canadian Council for Refugees' website setting out annual grant rates for IRB refugee claim grant rates. Each year dramatic variations are evident in these grant rates, with some members granting refugee status in almost every case they hear and others granting refugee status seldom, if at all.

Even when factors such as country of origin are taken into account, massive, unexplained variations in refugee claim grant rates persist, suggesting that outcomes turn at least in part on the luck of the draw, on who decides the application. In this context, errors in IRB refugee decisions are not only inevitable, they are likely common.

So my second point is that given both the likelihood of errors and the life and death stakes involved, it's essential that claimants have access to an appeal that can reliably catch errors.

My third point is that aside from appeals on the merits to the refugee appeal division, there is no reliable way of catching errors in refugee determinations. It is of course possible to apply for judicial review in Federal Court. However, judicial review is highly constrained. Refugee claimants must ask for leave or permission from the court before getting access to a hearing. In the vast majority of cases, about 85%, leave is denied. Even where leave is granted and a hearing is held, there are constraints on the process. Most importantly, the Federal Court rarely reconsiders factual findings or credibility determinations made by the IRB. Most cases actually turn on these factors.

In addition to these procedural constraints, there is evidence that the Federal Court's decision-making in this area is inconsistent. Earlier this year I released a study that examined over 23,000 applications for judicial review of refugee decisions from 2005 to 2010. During this period some Federal Court judges granted leave in 1% of cases and others in more than 70% of cases. So really it's the luck of the draw; outcomes turn on who decides the case.

Taken together, the procedural limits on judicial review and the evidence of inconsistent decision-making at the Federal Court suggest that judicial review cannot reliably catch errors in IRB decisions.

In my view then, because of the life-and-death stakes involved, because errors are inevitable, and because judicial review cannot catch these errors reliably, it is essential that all refugee claimants have access to an appeal on the merits. Bill C-31 removes appeal rights for some claimants, and my recommendation is that these appeal rights be restored.

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

Thank you very much.

I have to stipulate that I'm one of those who is very protective of any invasion of my privacy, so I always have lots of questions around biometrics. It's not that I have anything to hide, but I always worry about where that data is going to go.

My understanding was that in Bill C-31, the biometric limitations that are spelled out there were only going to be used to determine identity. But beyond that I'm gathering there is all kinds of sharing that goes on, so maybe you could further outline for me how the biometric information we are collecting for this purpose under Bill C-31 could be used beyond that.

[Les Linklater]

That's great.

Good morning again, Mr. Chair and members of the committee.

We are pleased to appear before you today to talk about Bill C-31 amendments related to the use of biometrics in Canada's immigration program.

I will first focus on the broad benefits of the use of biometrics followed by comments on the planned implementation of biometrics in CIC's temporary resident program.

Identity verification is central to the decisions taken by officials responsible for administering and enforcing the Immigration and Refugee Protection Act, IRPA, since accurately identifying a person is the fundamental element in effectively determining that person's admissibility. The challenge for Canadian immigration and border officials is to efficiently separate the thousands of mala fide cases from the millions of legitimate ones that we see each year. When doubts arise, time and resources are required to authenticate identity. When doubts are repeated at subsequent encounters of a traveller with immigration and border officials, additional time and resources may be required to re-authenticate identity.

Biometrics is a 21st-century identity management tool that can identify people based on an intrinsic physiological characteristic such as fingerprints. Unlike identity documents, biometric information is unique to each individual and cannot be easily forged.

Biometrics therefore helps supplement existing biographic information-based screening tools by significantly reducing the chance that one individual can pose as or be mistaken for another individual. Once biometric information such as fingerprints has been enrolled, the identity of that individual has been effectively fixed for as long as that information is retained.

Using biometrics will strengthen the integrity of Canada's immigration program by helping prevent known criminals, failed refugee claimants, and previous deportees from using a false identity to obtain a Canadian visa.

Biometrics will also help facilitate legitimate travel to Canada by providing a fast and reliable tool to help confirm identity. Furthermore, the use of biometrics will put Canada in line with most other western countries that are now using or preparing to use biometrics in their immigration and border management processes. These include the United Kingdom, Australia, the United States, New Zealand, and many countries in the European Union.

CIC is working in partnership with the agency and the RCMP to begin using biometrics in the temporary resident program. Starting in 2013, foreign nationals from certain visa-required countries and territories applying for a temporary resident visa, work or study permit will be required to provide biometric data to obtain a visa.

What we will do is take a fingerprint as well as a photo of all individuals applying from certain visa-required countries. The fingerprints that are collected will be sent to the RCMP for storage and will be checked against the fingerprint records of refugee claimants, previous deportees, criminals, and previous temporary resident applicants. The results of these checks will inform the visa decision-making process. At a port of entry, a border services officer will use the photo taken abroad to verify that the visa-holder is the same person to whom the visa is issued. Fingerprints will be verified at secondary inspection lines at the discretion of the border services officer. The use of biometrics means that these border officers will be able to make more confident decisions based on more accurate information.

Mr. Chair, I should note that CIC recognizes the importance of having the appropriate privacy safeguards in place to protect the biometric information collected under this initiative. We therefore continue to consult with the Office of the Privacy Commissioner to ensure that adequate privacy protection safeguards are in place for all aspects of the initiative.

Finally, with regard to the specific clauses found in Bill C-31, these would provide the necessary authorities for the collection and use of biometric information by allowing the government to:

(a) set in regulations which foreign nationals must provide biometrics, what information must be provided, and the procedures they must follow when making a temporary resident visa, work permit, or study permit application;

(b) set exemptions to those requirements in regulations, for example, for children, for the elderly, or diplomats;

(c) set regulations to facilitate the use of biometric information for Canadian law enforcement, and;

(d) exempt from the application of the User Fees Act the establishment of a biometrics fee.

The bill would also enhance the authority for CIC to provide services to the CBSA and to partner with other governments in providing services to applicants.

In closing, the collection and use of biometric information as supported by this legislation will strengthen the integrity of Canada's immigration program and facilitate legitimate travel, while at the same time protecting the privacy of applicants.

Thank you for your time. We will be pleased to answer any questions you may have.

[Les Linklater]

I think, as Mr. Hill explained, the grounds for detention are not going to change with Bill C-31. Individuals will be subject to detention if there are issues related to establishing their identity, if they pose a risk to Canada or Canadians through criminality or security, or if they pose a flight risk. I think it's important to underline that individuals, who may be part of a designated mass arrival, if they are able to help cooperate with CBSA and the RCMP to establish their identity and they don't pose a risk to the public, would be released from detention.

[Les Linklater]

The notion of permanent residence in Canada comes down to the according of a privilege by the government and by the country. Individuals who need Canada's protection under Bill C-31, as I just explained, will continue to receive that protection. I think the minister is right in saying that these new provisions under C-31 will probably strike a cord with individuals who are contemplating participating in a smuggling venture if they understand what the consequences could be to them in terms of their family situation, while ensuring that the penalties for the smugglers are enhanced to also try to further deter those types of networks.

[Les Linklater]

I think it is important to underline that Bill C-31 will continue to ensure that Canada upholds its domestic and international obligations towards people seeking protection. The principle of non-refoulement is, first and foremost, part of our analysis of the various provisions of this legislation. No one will be returned to a country where they face the risk of persecution or torture. They will receive Canada's protection if it's determined that they do require it.

What is different about Bill C-31 is that we will be able to move individuals through the system much more quickly than has been the case, to ensure that those who need our protection are given it much more quickly.

[Roxanne James, Conservative, Scarborough Centre, ON]

I'm going to touch base very quickly on a question asked by Ms. Groguhé from the NDP. She started to say that we're violating the Charter of Rights and Freedoms or the UN Refugee Convention, but in fact that's not the case. Under Bill C-31, we're still complying with all the regulations within the charter and the United Nations Refugee Convention.

Could you comment on that very quickly?

[Les Linklater]

It's fair to say that Canada's use of detention, even under Bill C-31, will be much less the case than is the norm in many other countries. Mr. Hill mentioned the average daily population in immigration detention across the country at about 500. When you think about the number of claimants we receive in any given year—last year I think it was around 25,000 and the year before about 23,000—it really does represent a small percentage of individuals who come to Canada to make a refugee claim.

[Roxanne James, Conservative, Scarborough Centre, ON]

Would you say that, even with Bill C-31 and the provisions that are outlined within it, Canada will use the detention of refugee claimants sparingly in comparison with other western countries? Is that true, or are we going to go beyond what other countries are doing?

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair, and welcome back. Welcome to all of our guests today.

As I've been listening and we've been talking about the different aspects of Bill C-31, I cannot believe Canada is the only country that will process some claims faster than others. I'm wondering, Mr. Linklater, if you can expand on that.

Is Canada the only country that will actually do this, or are there other western industrial countries—that we're compared against— that will also be doing the same process and have the same system set up?

[Peter Hill]

Yes. I would say that overall Bill C-31 has a number of measures that may well deter individuals from coming to Canada, but I would like to point out and try to underline that detention is not intended and is not designed at all to be a deterrent.

The purpose for a detention, which is in accordance with internal norms for immigration detention, is threefold. Detention is maintained to confirm identity, to ensure that the public is protected from danger so that dangerous persons are not released into the country. And, third, detention is maintained when there is a concern that the individual represents a flight risk and is unlikely to appear for their refugee or immigration processing. Those three conditions are the bedrock of the detention provisions that are proposed under Bill C-31.

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

Thank you, Mr. Chair. I'd like to thank our witnesses for being here today.

There is a lot of speculation when an analysis like this is begun. We just heard Ms. Sims speculate that the number of individuals in detention will increase if Bill C-31 is passed.

Mr. Linklater, is it possible that the number of detained individuals will decrease because the rest of the world will know that Canada does not admit people who are not true refugees?