Citizenship and Immigration Committee on Feb. 13th, 2007

[Olivia Chow, NDP, Trinity—Spadina, ON]

I'm sorry, if it's to go from CIC to IRB, I often thought that if you have the same people reviewing the same case, and the same body, then it could be a problem, so it does make sense in some ways to have PRRA away from the IRB and to have two bodies looking at it.

Now, if you take it out of CIC and put it into the IRB, it would be the same person. Let's say this person has a 5% success rate and is turning down 95% of all refugee cases; this may be the same person, the PRRA officer, or the PRRA officer could be reporting it back to the same person. It gets into the same cycle, the same rut, and then I can't see the refugee having a second chance for new information to be submitted.

Is it possible for CIC to establish an independent refugee appeal division, away from IRB--since IRB is not going to do it anyway, as I have noticed over the last few years--and actually have an independent appeal body through CIC? Then I can see PRRA going into IRB. That's fine.

If you take everything into IRB, given that they have not been willing to establish an appeal division and have not been willing to examine one at 5% and one at 85%, what confidence do you have that putting PRRA into IRB will give you fair justice for these refugees?

[Richard Goldman]

Well, I have to say right off that every institutional arrangement faces its challenges. What I would have to say is that it's not the IRB that didn't want to establish the refugee appeal division; it's the Government of Canada.

Now, that said, and admitting that every institutional arrangement faces its challenges, I do think it is possible to have a tribunal at which there is an appeal division that operates independently and professionally. I think we're very encouraged by the steps that have been taken to professionalize the nomination process for the IRB, and that's where the effort should continue.

Certainly there should never be a case in which one agent is reviewing his or her own decision. That is a basic principle in law. It's just not a fair way of doing things. If there's a separate division, if there is this increasing professionalism and expertise in Immigration and Refugee Board members, then I think it addresses our worries.

Perhaps there is no one perfect solution, but it just seems to make a lot more sense to have one tribunal in Canada, one in which people are professionally chosen, professionally trained, kept to a very high standard, and kept independent of government, as opposed to trying to create two.

I think you're suggesting that there be even a third institution, one that's not the IRB and not CIC, but it still is a duplication of all these resources, training, and so on, and in the present context, to create a third government body just doesn't seem to make a lot of sense.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Would we save any money if we actually put the PRRA into the IRB? We like to save government money, right?

[Richard Goldman]

I would say that if the appeal division were to be implemented in the way it was first presented--which was that you go to the IRB, you get a negative decision, you go on appeal, you win or you lose--if you lose, you no longer get a stay of all removal proceedings from the time you get a negative decision of a refugee appeal division.

Just to step back a bit, one of the big incentives for refused claimants right now to file at the Federal Court--some have excellent reasons for filing, others don't--is it gives them an extra three months or so during which everything is suspended. So whether they have a good case, and some do and might even be in the lucky 10% or so that have their case heard, or whether they have no case, there's a strong incentive to file at the Federal Court because it buys extra time.

That's extremely expensive to everybody, especially to the Federal Court judges, who are looking through a lot of cases that they don't feel are seriously prepared but have to look through anyway.

If the refugee appeal division were introduced, but there was no stay of removal after that, then virtually no one would file at the Federal Court unless they felt they had a really serious case. There would be no benefit to them. They would just have to spend a lot of money without getting any additional stay. So I believe that would save the Canadian taxpayer a lot of money, implementing it in that way, which is my understanding of the way it was meant to be implemented.

With the other recommendations of allowing the IRB to reopen a case where, exceptionally, there was very strong new evidence, change of circumstance, coup d’état, and so on, that in itself would probably eliminate much of the demand for the PRRA.

For the remaining cases where there actually did have to be a PRRA at the end of the line, to make sure someone was not deported to torture or death, I don't think it would save any money because you're still paying an official to make the certain decision. But I think you would save the money further upstream with those other reforms I mentioned.

[The Chair, Conservative, Norman Doyle]

Thank you, Ms. Chow.

I will go now to Mr. Komarnicki.

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

Thank you very much.

Following up on Ms. Chow's comments, are you suggesting that if RAD were implemented, the PRRA would be decided at the IRB level and decisions made there with respect to that aspect? Is that what you're saying?

[Richard Goldman]

Yes. Definitely our long-term solution is that the PRRA be taken out of the hands of CIC--

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

And put into the IRB?

[Richard Goldman]

Yes, sent to the IRB.

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

What about the humanitarian and compassionate grounds applications? Would you advocate that those too be placed in the hands of the IRB contemporaneously with the other process?

[Richard Goldman]

Personally, I haven't thought that through. There are many challenges with humanitarian and compassionate claims. It could be the topic of a whole presentation.

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

Would it not make sense, based on what I'm hearing you say, to combine the processes into at least one form if you had an appeal procedure beyond that?

[Richard Goldman]

The objectives of the two programs are different. But if you were to say, this is what my government is going to put forward, institute the RAD, put PRRA at the IRB, and have the IRB also decide H and Cs, I think we could live with it.

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

Given that thinking, would you agree with me then that the Federal Court, which has reviews--and I must disagree with you somewhat; it's not just for manifest error of facts, but if they disagree with the facts, they can send the case back for another review. If you were going to have the two levels of appeal, would you agree that you should narrow the areas of appeal to the Federal Court, which would now be a third level of appeal on issues covered in the first two levels?

[Richard Goldman]

I realize that we may end up agreeing to disagree, but the criteria for the Federal Court intervening on credibility or issues of fact is that the finding of the decision-maker was manifestly unreasonable. Those are the words that--

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

They use more words than that, because I've looked at the act myself. It's not just manifestly unreasonable or otherwise not supportable on the facts or something like that; it goes wider than what you suggest it says.

[Richard Goldman]

But the thing they're looking at, whether it's credibility or fact, the standard that is used, the notional standard, is that of manifestly unreasonable as opposed to correctness. If it were an actual appeal, the Federal Court would say it doesn't believe the decision-maker has made the correct decision. We see Federal Court decisions where the judge actually says, I might have arrived at a different decision, but it's not manifestly unreasonable. That said--

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

Then your point is that you don't think the jurisdiction of the Federal Court needs to be narrowed if you implement what we just discussed.

[Richard Goldman]

I don't believe it needs to be narrowed, but I believe there would be virtually no incentive for refused claimants to turn to the Federal Court, and the caseload would be drastically reduced.

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

I'm going to shift now to another point, and that's with respect to the removals themselves. Is it the position of Amnesty International that there ought not to be any removals where there are certain risks that might be experienced by an individual, notwithstanding issues of national security or criminality? Is there not a balance that needs to take place between issues of national security and a potential risk to the individual?

[Claudette Cardinal]

It's certainly a very delicate balancing act. But it is Amnesty International's position that if you have evidence showing that a person is a security risk to Canada, then let's try that person. Amnesty International is opposed to returning someone to a country where the risk of his or her being tortured, or being submitted to cruel and unusual punishment, or—

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

So as long as there's a potential risk, you're saying there should be an absolute ban on a return of individuals to those countries—

[Claudette Cardinal]

Yes.

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

—notwithstanding national security risks or interests. Is that correct?

[Claudette Cardinal]

Yes, because obviously if someone is a national security risk, and you are not able to try them, there are other mechanisms that Canada can use to supervise that person and make sure he or she is not a risk to Canada. But you don't send them somewhere where you know they're going to be killed.