Citizenship and Immigration Committee on Feb. 13th, 2007

[The Chair, Conservative, Norman Doyle]

We have a quorum, so we will call our meeting to order, as we continue our meeting on refugee issues.

We are pleased to welcome witnesses today from Amnesty International Canada: Claudette Cardinal, coordinator, refugees, Canadian francophone section; and Richard Goldman, coordinator, refugee protection, Table de concertation des organismes au service des personnes réfugiées et immigrantes.

Welcome to our meeting.

We don't have a full complement yet. We have some work going on in the House of Commons with respect to some meetings this week, so I imagine members will be along in due course.

If you have an opening statement you want to make, please feel free to make it.

We'll begin our meeting.

[Claudette Cardinal, Coordinator, Refugees, Canadian Francophone Section, Amnesty International Canada]

My name is Claudette Cardinal. To begin, allow me to thank you for giving us the opportunity to talk to you about our concerns over the Pre-Removal Risk Assessment Process, otherwise referred to as the PRRA. My colleague, Richard Goldman, will be assisting me in this presentation.

This brief is being jointly presented by three organizations: Amnistie internationale, and the Table de concertation, which is a Quebec-wide coalition of 140 groups serving refugees and immigrants, as well as the Centre justice et foi, a Jesuit centre for social analysis in Quebec.

For several years, our three organizations have been greatly concerned about the low acceptance rate for the Pre-Removal Risk Assessment, PRRA. In 2005, the national acceptance rate was 3% out of over 6800 decisions. In Quebec, the rate was just 1%, and did not increase in 2006. Our concern is based on the collective belief that no person should be returned to a country where they might face persecution, as provided for in the Refugee Convention, also known as the Geneva Convention, or face torture or cruel and unusual punishment, as provided for in the Convention Against Torture.

In analyzing files of refused refugees who have called upon our organizations for support, we have come across examples of practices that lead us to believe that there are systemic problems with the PRRA process. These problems include: dismissing apparently trustworthy evidence without providing the reasoning for doing so; arbitrary choices among documentary evidence; failure to independently consider credibility once the IRB has made a negative finding; raising of the evidentiary threshold far beyond that required by statute and jurisprudence.

Our submission clearly outlines these problems, which are supported by real life and concrete examples. We'll spare you full reading of our submission. Since I used to be a lecturer at a Montreal university, I will take for granted that you have all read and become familiar with the document. I would also invite those who have not had the chance already to become familiar with the Canadian process in seeking asylum. It is well explained in the first pages of our document. Our introduction also dispels many wrong and commonly held notions, such as the one repeated by one of the four or five ministers of this department over the last three years. It has been wrongly repeated that an applicant would have 52 possibilities to appeal a negative decision. Mr. Goldman will also talk to you about some other commonly held notions.

I, for one, wish to talk to you about one of my frustrations that is also shared by many others who fight to promote justice. Last Friday, I had the privilege of hearing Mme Louise Arbour, United Nations High Commissioner on Human Rights, speak. I also saw the television interview she gave. She was asked whether or not Canadians were doing everything possible to protect persons in danger. She replied that given all of the resources available to Canada, the bar should be very high. I believe that in most cases, we do not reach the bar. On the topic of the United Nations, Ms. Arbour talked about inaction and bureaucratic red tape. Don't these also qualify the work we do, from time to time?

Allow me to cite other examples of cases of applicants which have ended in Canada sending asylum seekers back to their country of origin. These are examples of cases which occurred as I was researching and drafting this presentation. Therefore, these cases are very recent, and as the saying goes, hot off the press.

The Pakistani gentleman whose case is referred to beginning on page 4 of our document went into hiding in a city far from his original home with his wife and children as soon as he returned to Pakistan. Last week his Montreal lawyer was able to contact the man's wife, and she indicated that within a very short time upon their arrival in Pakistan they began to receive death threats and threats that the children would be kidnapped.

I must say that when they returned to Pakistan, they did not go to the city where this man had originally been tortured. They went far away, to another place, and yet somehow authorities or the people who were opposed to them knew they were back and found out where they were and were threatening him and his children.

He had to flee the country and seek refuge in another country, where he will never be able to find full-time or permanent work. His situation is very iffy, but at least the pressure on his family decreased once he left.

So it's thus a misconception on the part of PRRA officers to believe in many instances that authorities and/or those responsible for persecution are unaware of a refused asylum seeker's return to his or her country of origin.

Yet despite all of this, this gentleman is still hopeful that his application for permanent residency, which he filed before he left Canada, will be granted.

Another case in which Amnesty International was involved concerned a former Mauritanian slave working as a peaceful advocate for the rights of Mauritanian slaves. When his country banned slavery, he travelled across the country informing former slaves of their rights. He was detained and tortured three times but, the third time, he managed to escape and make his way to Canada.

Two of his brothers, who were also human rights workers, were admitted into France as refugees. Although this man, who had applied for refugee status here, and his brothers had similar cases, Canada decided to deny the former's claim and send him back to his country of origin. Fortunately, after his removal, the Federal Court authorized a judicial review; however, the gentleman had already left. His whereabouts are unknown. We do not even know whether he is still alive.

I have one final example to illustrate the capricious decisions of PRRA officers. I want to tell you about a Mauritanian woman who filed a number of documents as new evidence in her PRRA application.

In a recent decision, the PRRA officer rejected documents from a Mauritanian court, saying that there was only a French translation and that the original document, written in Arabic, had not been provided. The officer also rejected evidence regarding two specific events that the woman related as new evidence of her fears, claiming that there was no mention of these events in the personal information form or PIF. However, that was not true, because not only had these events been detailed in the PIF, the IRB had also referred to them. Although the officer had listed a letter of support from Amnesty International's Canadian section (French-speaking) as new evidence, the officer failed to refer to it in his analysis.

With all due respect, I must point out that this contravenes a Federal Court decision. Not all the facts are the same, but the principle still applies. In the Thang v. Canada (Solicitor General) decision of March 2004, Justice O'Reilly stated:

The officer listed numerous documents that she had considered in making her decision. However, absent from the list was a document specially prepared by Amnesty International supporting Mr. Thang's application.

There is a presumption that decision-makers have considered all of the evidence before them, even if they do not refer specifically to each item. However, the more central a document is to the issue to be decided, the greater the obligation on the decision-maker to deal with it specifically. This is particularly so when the document contradicts the decision-maker's own conclusions. Here, the document at issue is a specific, detailed analysis of the applicant's personal circumstances, conducted by a credible source who arrived at a conclusion contrary to the officer's findings. The officer had a duty to at least refer to the report in her reasons.

The report in question came from the Canadian section (English-speaking). The Canadian section (French-speaking) is much smaller and receives approximately one hundred requests for assistance each year. Not all are from failed refugee claimants, but a vast majority are.

However, every year, I can write a specific letter of support for only 10 or 12 of those individuals, in other words, barely 10% of applicants subject to a removal order, because of the stringent standards imposed by Amnesty International's head office. We don't support someone just because we want to: we must comply with very strict criteria. I must tell you that this woman is scheduled to be sent back to Mauritania on February 27. As in other cases, some of the evidence in her file was rejected outright; it was not even taken into consideration.

If I may, before giving the floor to my colleague, I would like to share with you an off-the-cuff remark by a political advisor to one of the last four or five ministers. One day when I called the minister's office to ask for the minister's support regarding a very specific case and to prevent the individual in question from being removed, the political advisor said that I had no idea of the number of cases in the minister's office, that there were so many problems and that there was no rhyme or reason to it. In my opinion, if there are so many problems, perhaps it is time to fix the system.

[The Chair, Conservative, Norman Doyle]

Thank you, Ms. Cardinal.

Go ahead, Mr. Goldman.

[Richard Goldman, Coordinator, Refugee Protection, Table de concertation des organismes au service des personnes réfugiées et immigrantes]

Thank you.

I want to thank the committee members for receiving us today and for taking time to hear us.

I'd like to draw your attention to the recommendations we have made on pages 9 and 10 of the English version of our brief. We have them in two different parts. One is immediate recommendations, which would require no legislative change, and the other section is longer term and requires legislative change.

The first recommendation is the implementation of the refugee appeal division of the Immigration and Refugee Board. As I'm sure all of you know, this has been on the books since 2002, but it has not been put into effect. The reason we recommend it is that the Immigration and Refugee Board, like any system of adjudication, is open to human error.

To give you an idea of the possible scope for human error, earlier in our paper we cite the range of acceptance rates in 2005 for IRB members who heard and decided on at least 100 cases. As you will see, they vary between 5% acceptance and 88% acceptance. It's not to say that the IRB is better or worse; it's a system of adjudication that deals with human beings. It's open to human error. The stakes are actually higher than for any administrative or judicial decision taken in Canada. Given that Canada has abolished the death penalty, this is the only judicial or quasi-judicial decision in Canada that could lead to somebody's torture or even death.

Those are the stakes. With all due respect to some members who have said the contrary, even in the House of Commons, there is no appeal from an Immigration and Refugee Board decision. There is no appeal on the merits.

The possibility of judicial review exists at the Federal Court, but this has many obstacles. First of all, you must apply for permission to have your case heard by the Federal Court. There are 89% of cases that are refused at that level; they are never heard. If they are heard, the court can only intervene if it finds there has been a manifest error. It's not simply a question that the decision was not correct. A true appeal is when one tribunal looks at a lower court's decision and asks if it arrived at the correct decision. Here, it must be manifestly unreasonable, which is an extremely high standard to meet. It really is not fair to describe that as an appeal.

On the pre-removal risk assessment, which is the topic of our presentation, we have listed--at great length--different problems with it. My colleague Claudette has even provided some additional examples. But it was never conceived as an appeal. It was conceived as a way of looking at changes in circumstances or new evidence that becomes available after the Immigration and Refugee Board hearing. It was certainly never conceived as an appeal on the merits.

The other recourse, which is sometimes described as an appeal, is an application for permanent residence on humanitarian and compassionate grounds. This involves no independent assessment of the risk that claimants face if they were returned to their country. The risk assessment is carried out by the same PRRA officer. It's really not reasonable to call it an independent recourse, much less an appeal. And as Claudette mentioned in one of her examples, very often people are removed from Canada while awaiting a response on their humanitarian application. She mentioned a concrete example.

We'd like to point out, although I'm sure you're aware, that this would require no legislative change. In fact, it would simply require implementing existing legislation.

Our second recommendation is enhancing the training of PRRA officers with regard to the assessment of evidence and the interpretation of Canadian legislation, including the charter and human rights instruments. We feel this training should include the participation of representatives of the UNHCR and NGOs such as Amnesty International and the Canadian Council for Refugees.

Our third recommendation concerns disclosure by Citizenship and Immigration Canada of the qualifications and other requirements for being nominated as a PRRA officer, as well as the conditions of tenure, such as their expected workload, length of contracts, if applicable, job performance evaluation, and quality control of decision-making.

We note in our brief that one of your members on December 5 asked a question of Citizenship and Immigration Canada about the level of training and qualifications of PRRA officers. As the courts have mentioned, they are making extremely important decisions and are often applying complex legislation, like the UN Convention relating to the Status of Refugees, IRPA, and the Canadian Charter of Rights and Freedoms.

The member has been kind enough to provide me with some of the information that either has been or will be distributed. One thing that jumps out is that in Quebec the majority of PRRA officers have less than 24 months' prior job experience. These are people whom you would expect to be very senior agents with a great deal of immigration experience, a great deal of experience dealing with people facing persecution. I don't want to comment more. You'll have a chance to analyze this--I haven't--but it seems to be treated as something of a junior position.

One last immediate recommendation concerns oral hearings for the pre-removal risk assessment. As you may know, and as we point out in our brief, an oral hearing before the officer who will decide the pre-removal risk assessment is not guaranteed. Not only is it not guaranteed, it's almost never granted.

We cite a section of the IRPA regulations that has always seemed very ambiguous to me. It points out that an oral hearing should be granted when “there is evidence that raises a serious issue of the applicant's credibility”. We find it very strange that virtually all the decisions, whether at the IRB or the PRRA, are decided on issues of credibility, yet there are virtually no oral hearings.

This is something that has never been clear to us; therefore, we feel the immigration manual that applies here should be modified to make it clear that where credibility is an issue, there should be an oral hearing, especially where someone was not afforded a hearing before the board. Since 2002 there has been a category of people who claim refugee status in Canada but will never have an oral hearing before the board. This includes a person who made a claim some time in the past. They may have returned to their country and there may be a complete change in circumstance, but since they made a prior claim some time in the past, they will never get another oral hearing before the board.

We feel if that's the case they should at least be guaranteed an oral hearing before the PRRA officer. We cite a Federal Court decision stating not exactly that, but that generally where credibility is an issue, a person should get an oral hearing before the PRRA. We feel that should be codified into the immigration manual.

On longer-term recommendations that would require legislative change, we feel that ultimately it makes most sense for the PRRA to be taken completely out of the hands of Citizenship and Immigration Canada and placed in the hands of the Immigration and Refugee Board. This would solve all the problems of institutional independence, expertise, and training that we mention in our brief. More generally, it seems to be illogical to have two sets of officers--one at the IRB and one at Citizenship and Immigration Canada--who are applying the very same definitions of refugee and protected persons. Why not have only the experts at the IRB apply this? It seems like a needless duplication of services, and it raises all the difficulties of duplicating training, or possibly inadequate training and experience.

A second recommendation is to abrogate paragraphs 101(b) and 101(c) of IRPA that prevent someone who previously made a refugee claim in Canada from having another hearing in their lifetime before the Immigration and Refugee Board.

Finally is to enhance the powers of the IRB to reopen inquiries where there has been a significant change of circumstances, so they can re-hear a case, examine it, and grant refugee status. Right now, the IRB is very limited in the types of cases where it can reopen a hearing. It's limited to questions of natural justice, so it's just when there was a real problem of fairness in the hearing. Even if there has been a major change in circumstances, even if 10 years have passed since an earlier decision, the IRB cannot revisit the claim or reopen it for a further hearing. We feel this change is likely to avoid the need for the pre-removal risk assessment in many cases.

So those are our recommendations.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Goldman, and Ms. Cardinal as well.

We'll now go to questions from our committee members, and I believe first on the list we have Mr. Karygiannis.

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

Good morning to both of you, and thank you for coming. Certainly you are to be commended for the work you're doing, not only in Canada but throughout the world, on issues of refugees and protection of the human rights of individuals who can't speak for themselves.

I know this is going to go a little off topic, but for the last couple of days the committee has been looking at the three detainees in Kingston. I'm not sure if you have been following that particular issue. The committee has visited them and thoughts have been raised in the House of Commons.

I was wondering if one of you, or both of you, would have any comments on what is going on down there, or any thoughts on the matter.

[Claudette Cardinal]

I don't know what's going on specifically in Kingston, but I see what I see in the paper or hear on television. Certainly we're concerned about the three persons, just on a human level, with what they're going through right now. As a former nurse in one of my professional lives, I would certainly be concerned about someone who has been on a hunger strike for that long.

Amnesty has been before this committee, I believe, and certainly before the committee on security with concerns about the security certificates as such and the fact that we are detaining people on very little concrete evidence, and we don't detain them for just a few months. One of those men, if I understand, has been there five or six years.

If we've got the evidence, then let's charge them with something, but don't leave them in this state of limbo for this long. Also, if we return them to their countries of origin, probably they are at great risk of being tortured, being arbitrarily detained, and possibly worse, and that is certainly something that Amnesty is 100% against and is very concerned about.

[Richard Goldman]

I think the position of both Amnesty and my own organization, the Table de concertation, is that indefinite detention without access to evidence and without a charge is something that's not compatible with our system. Of course, I'm not telling you anything new to tell you it's before the Supreme Court and we're awaiting their decision, and we are certainly hoping the fact that the authorities realize this is a controversial provision guides them in their actions in terms of the prison conditions that seem to have sparked this particular hunger strike.

I don't know if there's much more we can say about that.

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

Thank you. Going back to the PRRA applications, and I know of the good work that you've been doing not only in one province but throughout Canada.... Have you seen any PRRA applications in regard to a specific country where let's say an overzealous immigration officer or case officer might be removing people? I'm looking for a particular country where people might have been removed, where they had been put in danger, one country more than another.

[Richard Goldman]

Go ahead with your Pakistani example.

[Claudette Cardinal]

Certainly Pakistan.

In terms of the cases that I receive for our help, there are certainly a lot of people from Africa, and often single men. That doesn't mean that men accompanied by spouses and children are not refused, but certainly those alone.... And maybe it's just the case that a lot of them are francophone countries, so they would come to Montreal and that's what I see. It's hard to know--the chicken or the egg.

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

You mentioned Pakistan.

[Claudette Cardinal]

Pakistan, the gentleman whose case we referred to.... Certainly there have been a number. There is also--

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

Was he of a particular religion, or a particular sect of a religion?

[Claudette Cardinal]

This man in particular, yes, and I can give you the example of a Pakistani woman also who was---

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

Christian, Ahmadi, Shiite, the man whom you were referring to?

[Claudette Cardinal]

She was Muslim. This gentleman was Shia.

The woman, I believe, was Shia also. She was in a village and she managed to organize the women in her village. She found sewing machines. She got these women sewing, and they were able to sell the clothing they were making. It was giving them a bit of money. She ran into opposition with the religious leadership, saying that she was organizing the women against their spouses. Her whole family...her husband died in detention, her father's home was burnt and eventually he died also. She has a cousin who was shot as he appeared before the courts in a Pakistani town. She has two brothers who have disappeared--she has no idea where they are. And this women, just from her work--she was the leader of the Pakistan Peoples Party in her town.

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

PPP?

[Claudette Cardinal]

Yes, PPP. So she is in great danger, and yet Canada saw fit to deport her. Her family has been almost decimated for political reasons, and yet we didn't seem to see any problem there.

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

Staying on Pakistan, has Amnesty International dealt with any cases of Ahmadis?

[Claudette Cardinal]

Not the francophone section, but I cannot speak for the anglophone section. They may have. We function completely differently and completely separately, so I don't know.

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

You mentioned Africa. Can you give us a couple of examples of where overzealous case officers might be returning people to Africa, the single men you were talking about?

[Claudette Cardinal]

For the Mauritanian gentleman I referred to here, the Federal Court eventually...he was one of the 11% of whom they said, yes, perhaps we should do a judicial review of his case, but he's already gone.

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

So he's got an H and C in?

[Claudette Cardinal]

Not to my knowledge.