Citizenship and Immigration Committee on Dec. 12th, 2006

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Have you taken that extra cost into consideration?

[John Frecker]

Yes. These costs are calculated on the basis that people would be.... I said it was different percentages of people going to the Federal Court after the RAD.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

If you were to take into account the fact that there would be additional time to do both a RAD application and then an appeal to the Federal Court of Appeal, those two processes in themselves would generate additional humanitarian and compassionate grounds applications in the legal service that would have to be provided for them. It would make just good common sense, wouldn't it?

[John Frecker]

No, not necessarily. I disagree with your—

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

You don't think a claimant would want to use those grounds available, if they were available?

[John Frecker]

A failed claimant would want to use whatever means are available at their disposal, but if the RAD is working efficiently.... The target for the RAD was to have decisions out within three months. The Federal Court delay, when I was looking at it, was somewhere between 12 months and 14 months.

If you got to a RAD decision, that would have two salutary effects. One is it would correct the cases where the people who were genuinely in need of protection would have otherwise had to wait for 14 months to get a Federal Court decision. For the cases that were not entitled to protection, it would have been a second decision confirming the first, and articulating in very clear terms why the claim was without merit.

That would make it possible for the Federal Court to dispose of a larger number of these unmeritorious claims at the leave level, and that would happen much more quickly, so it would actually get them out faster.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Excuse me, I think you're missing my point.

If RAD took whatever time it took, three or six months to make a determination, and a person was also able to appeal that decision unfavourable to the Federal Court of Appeal, that time, when you combine it together or individually, could be a basis for a reasonable application under humanitarian and compassionate grounds and would require legal costs or services to be provided.

[John Frecker]

You're missing the point. I don't know what the current delay is, but two years ago it was 12 to 14 months in the Federal Court leave process. I think it was about six months in the leave process and then about a year in the actual merits process. You had a very long delay in the Federal Court. A lot of people were having children in Canada and various other things that gave rise to humanitarian and compassionate claims. If the system is dealing with the merits of the case more quickly instead of getting tied up in a procedural morass in the Federal Court, you are actually going to reduce the circumstances where people are building up humanitarian and compassionate cases.

[The Chair, Conservative, Norman Doyle]

We're over eight minutes. I've allowed a minute's grace and I'm going to have to do the same over here. We're into five-minute rounds now.

Mr. Telegdi, please.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

We're getting to the discussion that the committee really wanted to have. Essentially what we're looking at with the RAD is improved decision-making, a simplified process, and reduction of costs. I think that's important. What I'm wondering is how can we get those overall figures. We had so many things coming out. The bureaucracy said to Mr. Komarnicki that welfare costs would go up to the provinces. Obviously, if what you are saying is correct, welfare costs would go down for the provinces and there would be a cost savings involved.

We're trying to arrive at the figures as objectively as possible and with as great a degree of precision as possible. I wonder if there's somebody you think the government could hire or commission to get a look at this and provide an objective report to the government and to the committee so we can make a recommendation.

[John Frecker]

I'm sure it's possible to hire a consulting firm, one of the big accounting firms, or anybody else who has the technical qualifications to go through all of the factors. It is complex: it's not just the RAD, it's not just the judicial review, it's the removal process. You've got to look at the whole package and say we've got an efficient process for determining the merits of cases, a process that doesn't leave itself open to endless procedural challenges because we try to do things in a quick and dirty way—which I think is the problem with the present system—and that really gets behind the issue of removals with respect to people who are not bona fide refugees.

The whole system breaks down when you have a large number of people who are not genuine refugees coming through the system and then staying in the country indefinitely because of failure to remove. The procedural aspect is almost a backdrop to that core problem.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

The other issue we have is it seems to me that once you apply for refugee status you have to go through the process and you have to be a failed refugee claimant to then be able to apply for a PRA, a pre-removal risk assessment, and H and C. I wonder why we don't have a system where you can have a determination at the front end that there's a pre-removal risk assessment, so even if you go to the refugee claimant and everything else.... You should be able to do it right away to avoid the refugee hearing altogether, and that would save time. The other one is the H and C.

[John Frecker]

That's the point I made to Madame Folco. The pre-removal risk assessment is a legal necessity when there is a delay. The initial decision by the refugee protection division is the risk assessment, and it's valid for a reasonable period of time. If you wait for two years before you remove the person, and there's been a civil war in that country and a change in government and all of these other things, it could be that these objective conditions that the refugee protection division made its decision on have totally changed, so you need the pre-removal risk assessment very close to the time of removal. You don't need it at all if you effect the removal very quickly after the initial decision.

The H and C is a tricky area, because it is an immigration jurisdiction; it's not a refugee protection jurisdiction at all. It has to do with the exercise of Canada's control over immigration and the people we welcome into the society as immigrants, and it is constituted as a ministerial discretion. The minister could delegate that authority to the tribunal, no question. Is the H and C jurisdiction being exercised on protection grounds, which is what the refugee protection division has expertise in, or is it exercised on other grounds? Who has the expertise on these other grounds? There's no reason why you couldn't train the refugee protection division members to do that. In our present system, the feeling in the immigration department is that particular jurisdiction should be exercised within the department, and that's why it's split. It would be a matter for the minister to decide whether he wants to delegate that authority to the tribunal, and then to ensure that the tribunal members were adequately trained to exercise that in accordance with established policy.

[The Chair, Conservative, Norman Doyle]

Thank you.

Did you want to finish a thought there?

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Very obviously, we have two sets of views on the matters presented to us. You very well articulate the view that some members of the committee have, and then we have the view of the bureaucrats who are arguing the other. I think our job is to find which one is the correct one. I think we could come to an agreement, Mr. Frecker, if your view of the world is correct, versus the bureaucracy. We'd have the parliamentary secretary jumping online, I'm sure, with the minister. So that's what we are struggling with and trying to come to terms with.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Telegdi.

We now go to Mr. Komarnicki.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Thank you.

On this issue, I have a couple of concerns. The quality of the judges, of course, in the Federal Court is fairly high. I would expect that your appointments to the RAD would not be superior to the Federal Court. Would you agree with me there?

[John Frecker]

They wouldn't be superior, but they might be more expert in the specific subject area. There are some wonderful judges on the Federal Court who will be the first to tell you that they deal with intellectual property, admiralty, and all these other issues.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Judges can adapt to different areas just as quickly as anybody else can. And let me tell you this: their review is first of all based on the record. Would you agree with me on that?

[John Frecker]

Yes, absolutely.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

In both cases, the refugee appeal division and the Federal Court, they review the record. There's no new evidence. Do you agree with me on that?

[John Frecker]

Correct.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

When they review the record, they can make determinations based on errors of law and mixed errors of fact and law. Is that not so?

[John Frecker]

Correct.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Would not Federal Court judges be at least experts in areas of law?