Citizenship and Immigration Committee on Dec. 12th, 2006

[The Chair, Conservative, Norman Doyle]

We can't do it. Ms. Grewal left the room when she found out that we were waiting.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Ms. Grewal left the room before she found out.

[The Chair, Conservative, Norman Doyle]

Anyway, I'm adjourning the meeting until our witness comes.

[The Chair, Conservative, Norman Doyle]

We'll get our committee back to order again.

I want to welcome, on behalf of the committee, Mr. John Frecker.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Mr. Chair, we can't start. One of our members is still missing. Wasn't that your ruling?

[The Chair, Conservative, Norman Doyle]

We have a quorum.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Wasn't that what you ordered today?

[The Chair, Conservative, Norman Doyle]

Order, please.

I want to welcome on behalf of the committee Mr. John Frecker, president of Legistec Incorporated.

Welcome, sir. I'll pass it right over to you now for your comments, and then go to questions.

Mr. Frecker.

[John Frecker, President, Legistec Inc.]

Thank you very much, Mr. Chairman and committee members.

My apologies for arriving late. I went to the wrong door, being a creature of habit, and then wandered around and met Mr. Farrell downstairs, who showed me up.

I was asked to attend at the committee late last week—quite by surprise, because it's about four years ago that I did this study for the Department of Justice on legal aid. I've moved on to do work in other areas besides immigration over the past four years. It was a bit of a refresher course for me to go back and read my own paper.

I gather that the committee is interested in the issue of cost of the refugee appeal division. That was a peripheral part of the study we did on legal aid and legal aid cost drivers, which covered a whole lot of different things—global pressure, what's driving refugees to come to Canada, process problems at the first level and at the second level and at the court level. The RAD component was an important part, but only part of that broader study.

Excuse me. I'm a bit out of breath from running.

What we were looking at in that study was specifically the cost implications for legal aid. We concluded that the addition of an appeal level would have definite cost implications; that there would be added legal aid costs simply because there's more process. But the flip side of that is that the appeal division serves a very important purpose in actually simplifying the process.

The problem we have now with the first-level decision, and then the only recourse left being the pre-removal risk assessment process or judicial review, is that all the cases that are rejected, or a very high percentage of the cases that are rejected, seek leave in the Federal Court.

A significant percentage of these cases get leave, and when the Federal Court hears the cases, the most it can do is quash them and say that the decision was defective and then remit the case back to the refugee protection division for a new hearing.

The process in the Federal Court is intrinsically slow, partly because of court backlogs. I gather from Mr. Farrell that you've just heard witnesses testify that they, fortunately, have reduced their backlogs, which is very good to hear. But also, the court process itself is slow and cumbersome.

The idea behind the RAD is to have an expert tribunal of people who are familiar with country conditions and familiar with the issues the refugee protection division is dealing with and who can deal in a very efficient manner with the appeals.

The appeal division would also be different from the Federal Court, in that it would have the power to enter the correct decision rather than just quashing it and sending it back for a rehearing. If you look at its remedial power and think that it can get to the right decision more quickly in the cases where the first-level decision should be overturned, that's a significant time saving. Time is one of the biggest cost drivers in the entire asylum process—the delay of having people hanging around the country before removal, if they are slated for removal, or the delay in getting their status regularized, if they are people in need of protection.

The Federal Court would not disappear from the equation, because it's a plenary jurisdiction of the court to review the decisions of subordinate or statutory tribunals, but one can surmise that the deference that would be accorded to the decisions of the refugee appeal division would be higher than the deference that's currently accorded to the decisions of the refugee protection division, simply because it would be recognized, constituted, designed, and I trust recognized by the court as an expert tribunal.

We see this across the spectrum of administrative tribunals. Certain ones are accorded a very high level of deference—only a very small number of their decisions are ever quashed by the court—and I would submit that we could anticipate a comparably high level of judicial deference for the decisions of the refugee appeal division.

This means that we would get to final disposition on the merits of refugee claims more quickly than we do under the present system, and that would represent a net saving to the system, even though there would be predictable increased legal aid costs for representation in the proceedings before the appeal division.

That was the central hypothesis or thesis in the paper that we prepared for the Department of Justice.

Rather than speculating on what may be of interest to the committee, I would welcome any questions you might have, and I will try to answer them as best I can.

My primary preoccupation is system efficiency. That's probably shared by most members of this committee, who obviously are very concerned about having a refugee protection system that protects genuine refugees in need of protection and filters out those who are not in need of protection, and hopefully gets them removed from the country as quickly as possible.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Frecker.

We have approximately 45 minutes, so I will go first to Mr. Karygiannis.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Mr. Chair, I'd like to split my time with Madame Folco.

Mr. Frecker, welcome to the committee.

I have only two questions. Your study encompassed what would happen and the length of time it takes to get to the Federal Court and some folks who are probably not able to reach there because they are on the removal stream and get to be removed. Have you looked at the—

[John Frecker]

That wasn't a preoccupation of this particular study. We were commissioned to look at legal aid cost drivers, because in 2002, when the study was commissioned, there was an ongoing debate between federal justice and provincial governments, provincial legal aid authorities. They wanted to know, since immigration is a federal matter, what was driving the cost in immigration. So that was the focus of the study.

These other issues are very legitimate issues.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Are all the provinces still covering refugee hearings with legal aid, or have some provinces opted out?

[John Frecker]

As far as I know, some have opted out. Again, I have been away from this particular field for the past three years, so I would be guessing. I wouldn't be able to give you a definitive answer.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Go ahead, Raymonde.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

I'd like to thank Mr. Karygiannis for sharing his time.

Mr. Frecker, it's good to see you again, to begin with.

[John Frecker]

And you, as well.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Thank you.

I'm sorry my question doesn't address legal aid; it addresses the big picture. The question, which I asked Mr. Guénette of the Courts Administration Service, is essentially the same question I'll ask you.

To begin with, I'm for the RAD. It's an important piece of legislation and should be implemented. However, I don't think it should be another piece that is added to the complete picture of all the recourse refused refugee claimants have access to right now. My feeling is that we have to look at the whole set of recourse, with all the meanderings involved, in terms of adding a RAD, replacing it, and sort of juxtaposing pieces together.

I know you've done a great deal of thinking about this in the past. Would you like to make a fairly detailed comment on how you see the whole set of recourse to which refused refugee claimants have access, in terms of bringing in the RAD and changing the whole dynamics of recourse?

[John Frecker]

The issue of recourse for refugee claimants is very difficult, and I think quite confusing. Madame Folco is very knowledgeable on this, having served on the board.

People talk about all this recourse that claimants have. But if you look under the current act, they have their hearing before a single member of the refugee division. They then have the right to seek leave for judicial review. That's not getting to the court; that's getting permission from the court to go to the court. I don't know what the current statistics are, but when I did the study only about 12% of cases got leave. So this meant that of those who were rejected and who sought leave, 88% were out of luck at that point.

Then their other recourse is the humanitarian and compassionate application, which is available to all immigrants. And it has nothing to do with the asylum claim; it has to do with the circumstances the individual finds himself in, family circumstances and things like that, and whether removal from Canada would be an undue hardship. And it's, at the end of the day, a discretionary remedy that rests with the minister.

The other remedy is the pre-removal risk assessment, which only kicks in if there is a significant delay in removing a failed refugee claimant; and that only deals with allegations of changed circumstances in the country of origin.

So the claimant never has the chance to re-litigate the matters that were heard by the single member before the refugee division. That case is closed, unless it's overturned by the Federal Court on judicial review.

In the pre-removal risk assessment, they can bring forward, if such evidence exists, evidence of changed circumstances in the country, if there's a coup or if there's a civil war started, or something like that, that would make removal to that country dangerous. But that's a very limited process. So the total bundle of recourse that's available to refugees is not in fact as broad as some of our newspaper editorialists would have us believe.

The big problem in the system is slowness in removing failed claimants, and that's a resource problem for the Department of Immigration. I don't think it's lack of will on their part, particularly during the period when we had 45,000 claimants a year coming and a significant number of these were rejected. The task of having these people removed or going and collecting them and effecting the removal is very difficult, and you find that a very significant percentage of them just never get removed. That is a fundamental problem in the system, but it's not a problem with the recourse.

So I would see the RAD as being a vital element in this system, but I wouldn't see removing the pre-removal risk assessment process or the H and C. And as I mentioned in my earlier comments, access to the Federal Court is a legal remedy that's available because of the status of the refugee board as a statutory tribunal. What I would hope would happen, as a practical matter, is if the quality of decisions at the refugee board, the RAD, were demonstrably high, the incidence of judicial review being granted and the delay that's associated with it would be eliminated.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Are you suggesting that the system stay pretty much as it is and that we add the RAD simply as another piece to it?

[John Frecker]

Yes. I think that it would actually represent an improvement in efficiency of the present system. This is where I probably part company with some of the people who see it simply as adding layers. With the kinds of things the RAD does, it gets you the correct decision in the appeal process instead of just getting you a quashed decision and sending it back to be reheard. It also provides guidance, precedential decisions to guide the decision-making at the first level.

One of the big problems that a big tribunal like the refugee board faces, particularly with offices spread across the country, is consistency in decision-making. People tend to look at very similar cases, and, because of a difference in the way evidence is presented or differences in the culture of local offices, they will decide demonstrably similar cases differently, and that's, frankly, an injustice.

If you have an appeal division that's centralized and that's hearing these diverse cases and developing a guiding jurisprudence on recurring fact patterns, that will actually make decision-making at the first level a lot more efficient.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Would you suggest that the RAD include in its decisions a look at humanitarian and compassionate factors, and return of risk as well, as a complete package? What I am looking at is to try to limit the time in which people go back into the system time and time again. Would it be possible for the RAD decision to include these other two factors?

[John Frecker]

The amendments to the act in 2001 expanded the definition of the general protection grounds to include persons in need of protection.

The humanitarian and compassionate is a different beast. As I said, it's not to do with asylum. It's not to do with refugee protection. It's to do with the circumstances of the person in Canada, and that's really an immigration issue. So I think it's important that discretion over humanitarian and compassionate admission to the country remain a ministerial discretion and that it not be appropriated by the board.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

Would there be a risk of return, also?

[John Frecker]

The risk of return is covered now. The risk of return.... I think I misunderstood you.

The pre-removal risk assessment, by its nature, kicks in at the moment of removal, so if there's a delay between a RAD decision and removal, as there is now a delay between a refugee protection division decision and removal, there may still be the need for a pre-removal risk assessment. I personally would have liked to have seen the pre-removal risk assessment taken over by the board, because it has the expertise, but Parliament in its wisdom decided to leave that at the departmental level.