Citizenship and Immigration Committee on Feb. 8th, 2007

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Professor Anker, I'm really glad you raised the question of the REAL ID Act because I know the Canadian Council for Refugees, in its recent submission to the Canadian cabinet on the issues around the safe third country, made a real point of the problems that arise out of that—the question of material support for terrorist organizations, the issue around trying to prove the motives of the persecutor, issues around corroborative evidence. Also, you mentioned the U.S. Commission on International Religious Freedom and their concerns about asylum seekers in expedited removals. All of those are very serious issues and I think give us clear evidence about that. Do you have any further comments about the REAL ID Act and how that has affected the refugee determination process in the U.S.?

[Deborah Anker]

I'm sorry, I completely neglected to mention material support for terrorism, but this was a provision of the REAL ID Act, which is that if you are found to have materially supported a terrorist organization, you are barred from asylum and any kind of protection is withheld. Material support under the U.S. definition—and this is recognized by U.S. officials—is any kind of support whatsoever. There is no duress and no de minimis exception to that.

One of the most pointed examples of the application of that has been the case of Colombian refugees. Guerrilla organizations, including the FARC in Colombia, often kidnap people and then extort from their relatives; that's how they raise their funds, by kidnapping people and then demanding that their family pay. The family, of course, has to pay the ransom or their relatives will be killed. But if they pay, they are now found under U.S. law to have materially supported a terrorist organization. The level of duress required by basic humanity, which everyone in this room would participate in, is a basis for an absolute exclusion under the material-support-for-terrorism bar. If you are a child and you live in a conflict area and you give a glass of water to an individual in that conflict, you will have supported that terrorist organization. That is where U.S. law stands.

A couple of weeks ago, authority was granted to immigration officials to exercise some discretion in allowing some refugees in under that authority. That discretion has been exercised for some Burmese refugees in overseas camps. It's not clear what it's going to result in, but discretion is completely unreviewable. I don't think the record we have so far indicates it's going to be sufficient.

[Francisco Rico-Martinez]

We are dealing with a Colombian case in which two brothers are making refugee claims here in Canada, and their mother is still in the hands of the guerillas in Colombia. They are forced even here to send money back to keep their mother alive in Colombia. The whole core of the case is a distortion, given how they have been forced to do this and their mother is back there. There is plenty of evidence about this. A lawyer in the United States advised them not to make a claim in the U.S., because if they mentioned the core of the case, they would be immediately banned and rejected. Here in Canada, the hearing will be in two months, and it's clear that these persons may be accepted by the Immigration and Refugee Board, because our rate of acceptance is almost 80% in the case of Colombia.

So the situation is very different between the two countries. Mandatory detention is also something we don't have here in Canada, and we don't have the one-year bar. Everybody agreed that it would not be possible, because the one-year bar is even worse for women, because they are the ones who.... The principal applicant is a man, and if a situation of domestic violence, or whatever, happens later on, they are banned, even though their first intention was to make a claim immediately when the situation happened. In that case, the differences are abysmal.

[The Chair, Conservative, Norman Doyle]

Thank you very much.

You've got about 15 seconds, if you want—

[Bill Siksay, NDP, Burnaby—Douglas, BC]

I'll just thank the witnesses—and I'll hope to get a second round.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Siksay.

Mr. Komarnicki.

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

Thank you, Mr. Chair.

Thank you, witnesses, for your input and, Mr. Rico-Martinez, for the specific cases you raised. I'm sure there will always be a number of cases that will come forth. Of course, you're looking at it from the refugee perspective, and I just want to look at it from a little different angle and pose some questions.

I understand from Ms. Anker that you're not advocating doing away with the safe third country agreement but actually bolstering it or making it better. Was I correct in understanding that?

[Deborah Anker]

No, I don't think that's correct. What I was saying is that a fundamental requirement under the agreement is that a current and meaningful evaluation be made as to whether the United States is a safe country for refugee claimants. Canada has an obligation to assess that, and it hasn't done so since 2002.

[Francisco Rico-Martinez]

She's very respectful of Canada and she doesn't want to be seen as making a comment about our policies, but if you talk to her at another level, you will see the—

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

I noticed that the UNHCR's overall assessment of the agreement was that it was generally implemented by the parties according to its terms, and with regard to those terms, in accordance with international refugee law.

So when the United Nations High Commissioner for Refugees was here in Canada and appeared before this committee, he indicated that they considered the United States to be a safe country, otherwise they would not have agreed to do the monitoring, and they would have said so at the very outset.

Do you disagree with the United Nations High Commissioner's view?

[Deborah Anker]

Yes.

I really don't know what specifically the High Commissioner testified to. Their monitoring report was simply a report as to whether the terms of the agreement, namely, the implementation of the exceptions, was being fairly done, and they concluded that it was.

The UN High Commissioner for Refugees is under very real constraints as to their ability to criticize the U.S., especially in a very public forum like this. They have specifically found that detention of asylum seekers violates the 1951 convention.

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

There are certain improvements they suggested that have been looked at by the parties.

[Deborah Anker]

But that has to do only with implementation of the exceptions. It doesn't have to do with the fundamental underlying assessment and assumption of the safe third country agreement, which is that the U.S. is a safe third country.

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

Fair enough.

Part of the consideration you're looking at is the refugee application process, but one of the objectives or the policy behind the safe third agreement is to prevent what's commonly referred to as asylum shopping, or cases where I suppose asylum seekers pass up earlier opportunities to obtain refugee protection in order to claim refugee protection in a country of their choice, often for reasons unrelated to a need for protection against removal to countries where they face risk.

Now what's your understanding of asylum shopping? Do you think the agreement does address this? Is there an issue with respect to seeking protection in places other than in the country you first are able to make the application?

[Deborah Anker]

The safe third country agreement is an agreement between the United States and Canada, so if there's an issue of forum shopping, it's between the United States and Canada. It doesn't involve any other country. It's about only the United States and Canada.

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

There are other safe third country agreements in Europe and other countries where they deal with the issue of asylum shopping. Is that not the objective behind that agreement, even if it is between the two countries?

[Deborah Anker]

I don't think that basis for the agreement is grounded in reality at all between the United States and Canada. People who can't get protection in the United States because it has not been a safe third country for them have been coming to Canada. Canada has never had an overwhelmingly large number of refugees from the United States at its borders.

It has been an important refuge for persons from the United States who have not been able to get protection there. It was a critical safety valve for Central Americans. It was a critical safety valve for Colombians.

Generally, around the world, I think the reason we are having safe third country agreements, the reason countries are entering into them, is because they are disrespecting their obligations under the 1951 convention.

The worldwide trends are that the numbers of refugee applications that are coming to the countries of the north have gone dramatically down. The UNHCR is very concerned about this. And the vast majority of refugees remain in the developing world.

So, no, I don't think the reason for this is forum shopping.

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

Professor, I just want to draw your attention to another professor. David A. Martin, the professor of law at the University of Virginia, an internationally recognized expert on the U.S. refugee determination system, has taken issue with you and is diametrically opposed to your views on many of the issues you've raised. Would you agree with that?

Secondly, he indicates that in the period 2001 to 2005, 148,000 people were granted protection in the United States out of 205,000, or about 45% overall. Canada's rate of acceptance for the same period of time was about 43%. Wouldn't you agree that the overall acceptance rates, although there may be differences in application and process, are similar between the two countries? Would you agree with that?

Would you agree that Professor David A. Martin takes an opposite view to yours on most of the issues you've raised here today?

[Deborah Anker]

I think Professor Martin and I disagree about some critical issues. I don't think we disagree about everything. As to his statistics, the United States has been recognizing refugee claims for some groups of refugees and certain refugee claimants; it is not for many, and especially for Colombians.

Because the United—

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

Are you disagreeing with the rates being about 43% to 45% overall in between the two countries for that time period?

[Deborah Anker]

I think those rates are probably correct.

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

I also noticed that in the exception category, which many can use in their intent to come into Canada claim, the statistics show that of 4,000 individuals who requested refugee status at Canadian land border ports of entry, between December 29, 2004, and December 28, 2005, more than 3,000 were found eligible to make a refugee claim in Canada under the exception. It seems as though many refugee applications are proceeding through the exception category.

In the United States, I understand, you were favourably impressed with the asylum office of the Department of Homeland Security. I understand you said there's a lot to commend that office about. They've received about 75% of the asylum claims filed over the past five years, and many of those are proceeding in a reasonable fashion.

So would you agree that many are getting through using the exception class in Canada, and that in the United States, the Department of Homeland Security, which handles mostly asylum claims, is doing a fairly adequate job?

[The Chair, Conservative, Norman Doyle]

We have time for a brief response. I have to go to the next round. It's seven minutes and 38 seconds now, so a brief response would be okay.

[Deborah Anker]

Four thousand represents only the number of people who presented themselves at the border. The great majority of people do not present themselves at the Canadian border anymore because they know they don't fit within the exception. That gives a very false—

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

Of the 4,000, though, 3,000 make it through.