Citizenship and Immigration Committee on March 29th, 2007

[The Chair, Conservative, Norman Doyle]

I've been told in no uncertain terms by a member of the committee, “Let's get moving”, so I guess we'll have to get moving.

I want to welcome all of you here today to our meeting and our consideration of Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171).

I want to welcome here today, from the Department of Citizenship and Immigration, Mr. Malcolm Brown, assistant deputy minister, strategic and program policy; Micheline Aucoin, director general, refugees branch; and Mr. Eric Stevens, legal counsel, legal services. Thank you for your presence here today to help us out as we consider Bill C-280.

I think you are well aware of the drill. I think you have opening remarks, so I'll go to Mr. Brown, the ADM, for opening remarks. Do you all have opening statements?

[Malcolm Brown, Assistant Deputy Minister, Strategic and Program Policy, Department of Citizenship and Immigration]

No, we just have brief opening remarks.

[The Chair, Conservative, Norman Doyle]

That's fine, thank you.

You can begin, and if the committee wishes to interact and ask questions afterwards, of course, the opportunity is there.

Thank you.

[Malcolm Brown]

Thank you, Mr. Chairman.

I would like to thank the committee for having invited departmental officials from Citizenship and Immigration to speak to you on the issue you are studying, that is to say Bill C-280, an Act to amend the Immigration and Refugee Protection Act.

As you stated, Mr. Chairman, I am accompanied today by Ms. Micheline Aucoin, Director General, Refugees Branch, and by Mr. Eric Stevens from the department's Legal Services Branch.

The committee is aware of the subjects of concern to the government as far as Bill C-280 is concerned. The committee also knows that the government opposes the bill. We are here to answer procedural questions, for example concerning the necessary preparations for the implementation of a schedule, and questions related to the transition.

At Citizenship and Immigration Canada, we are very proud of our Canadian refugee determination system. It is often described as being one of the best in the world, including by the United Nations High Commissioner for Refugees. There is no doubt that Canada respects its international commitments and the requirements of the Canadian Charter of Rights and Freedoms, and that it even goes beyond that. Canadians can be proud of their humanitarian tradition.

Let me begin by drawing your attention to the fact sheet entitled “Refugee Appeal Division” that the department tabled at this committee in December of last year. In that document, we discussed the many opportunities that refugee claimants currently have to show why they should not be removed from Canada.

First, they have access to the refugee protection division of the Immigration and Refugee Board, where independent, well-trained, well-informed decision-makers hear the claimants' stories and review the information put forward to support that story.

Second, claimants have access to the pre-removal risk assessment, where they can put forward any new information that has not been considered by the IRB. Well-trained, well-informed public servants ensure that individuals are not returned for persecution, torture, or death.

Third, failed refugee claimants can apply to stay in Canada for humanitarian and compassionate reasons, including reasons of risk. Refugee claimants can and do make such applications, and many are accepted. About half of applicants for permanent residence on humanitarian and compassionate grounds—H and C, for brevity—are failed refugee claimants. The general H and C acceptance rate is 50%.

Fourth, refused refugee claimants can apply for a judicial review of that decision. The Federal Court review involves a full paper review of the IRB decision on grounds of fact and law, much like the refugee appeal division as proposed in Bill C-280.

The Federal Court can send and has sent cases back to the IRB based on patently unreasonable errors in findings of fact in a range of cases, including on issues relating to the claimant's credibility, assessing medical evidence, gender persecution claims, as well as the availability of police protection and country conditions.

I would like now to turn to some of the technical issues that are raised by Bill C-280.

The first issue has already been raised by Jean-Guy Fleury, the former chair of the IRB, when he appeared before this committee in December 2004. He advised that the board would require approximately one year to establish a fully operational refugee appeal division. I believe this lead time to be optimistic.

While the IRB is here to testify later this morning, there are a number of issues worth identifying. Board members with a different competency in hearing appeals than is currently the case would need to be assigned to the RAD, or appointed. Finding members and training them will take time. As well, a new set of rules establishing the procedures and conduct of a new division would need to be created. The IRB would also need to locate office space, set up systems for applications to be made, and establish case management technologies to implement the RAD. Resources would need to be identified even to begin such a process.

The second group of issues relate to the lack of transitional provisions in Bill C-280, which raises a number of questions. Who would be eligible for this new appeal? Would it apply to old cases, since the Immigration and Refugee Protection Act came into force in 2002, or only to new ones? What would be the rule for cases currently before the Federal Court? Who would hear cases sent back by the court: the refugee protection division or the refugee appeal division? What are the risks of saddling the new appeal division with a large backlog, which would cause further delays? These are issues that could have serious consequences, if Bill C-280 is enacted into law.

In the fact sheet the department tabled in December, we indicated that the addition of the refugee appeal division would add at least another five months to the already long refugee process. This is based on the assumption that the RAD would be given a fresh start without a backlog on day one and that it would be implemented with a full set of trained decision-makers already in place. Should this not be the case, these delays could stretch to many more months.

I would also point out that among the unproclaimed provisions of IRPA is a section, section 73, that ensures that the government could appeal any decisions of the refugee appeal division. This section does not form part of Bill C-280. Just as failed claimants have access to the Federal Court, so should the Minister of Immigration.

Thank you for your time listening to me. We welcome your questions.

Thank you, Mr. Chairman.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Brown.

If there are no further statements, we can go immediately to our seven-minute round of questions and to Mr. Alghabra.

Mr. Alghabra.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Good morning, everybody, and thank you for coming here today.

I understand from your remarks that there are some challenges and there would be some challenges if we were to implement the appeal division. I'm sure there are challenges in maintaining our refugee and IRB system as is right now. I'm not trying to dismiss or refuse to acknowledge that there would be some challenges in implementing the appeal division.

But having said that, at the time we reduced the IRB panel from two judges to one judge, wasn't the intent that it be a compromise, to reduce the panel and make it more efficient, but in exchange for an appeal division that IRB would implement?

[Malcolm Brown]

You're really asking me two questions, and I'll try to answer both.

In terms of the challenges, yes, of course there are challenges in running any system. What we've tried to identify today are specific challenges that I think are unique, in terms of our having been asked about the specific implications of Bill C-280.

There is a responsibility upon officials to identify what those are. They are significant and, I would argue, they are not simply business-as-usual ones in operating big systems. They're complex.

As I underlined in my statement, and I won't repeat it, there are very significant implications if the bill is passed as it currently stands, in terms of the absence of transition provisions and those sorts of things.

On your second question, about the “deal”, to paraphrase what you've described, there is no question that IRPA contained the provisions and that RAD was not implemented. I'm not sure it's a question of the history of it; it's the question of the implications of the decision around implementing the RAD. At the time, there were implications in terms of backlogs, and there was a decision made.

I think as well, our assessment is that the system we have now is working quite well. As for the concerns some people may have had at the time around a single decision-maker and whether their system was robust enough and had sufficient protections in place, we think adding a new measure of appeal wouldn't significantly change things and would in fact only result in further delay and more money.

Our view is that the circumstances of how IRPA was negotiated at the time of the bill is an historical point. As an official, I have to deal with the consequences of the legislation before us, and a debate, frankly, about what was or wasn't agreed to at the time is really outside my pay grade, if I can put it that way.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

Okay. I certainly appreciate and accept the fact that you are sharing with us what you feel would be the challenges of implementing the appeal division. As I said, I'm not dismissing them.

You will also perhaps agree with me that these decisions made by IRB are significant and will have significant ramifications upon the people who are seeking a decision by IRB. Any significant alteration of the decision process will sometimes have life-and-death ramifications upon the lives of those people. And not only do we have to be fair, but we have to be seen to be implementing a fair and transparent process.

This committee has heard from various witnesses about the challenges and the obstacles an applicant would have to face if he or she is denied, based on what they feel was an unfair decision, and if the court review process or the PRA process did not afford a transparent or open appeal mechanism.

Let me get back to this question. Would you, then, favour reinstating two judges on the IRB panel instead of implementing the appeal division?

[Malcolm Brown]

As an official, I'm not sure my personal views about that are germane.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

Well, we're asking you here to tell us what the challenges are, so—

[Malcolm Brown]

Well, I can talk to you about the challenges, but in terms of policy advice, in terms of the way the system should or shouldn't be, the position of the department and, as a consequence, my position is that we think the current structure we have, including the single decision-maker with all the appeal mechanisms that are in place, is robust, is fair, and provides sufficient—in fact, numerous—appeal avenues, and that it's not clear that adding an additional one would radically address the shortcomings people have identified. It would add another step, but it's not clear that it would get to the heart of shortcomings people are....

And frankly, I think the issue people are dissatisfied with involves negative decisions.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

Right, and the issue is, given the individual who may have a legitimate claim for one reason or another, to get a sense that their decision has been reconsidered by another individual who's qualified to do that.

Then let me rephrase the question: would it be less of a challenge to reimplement two IRB judge panels than to implement the appeal division?

[The Chair, Conservative, Norman Doyle]

Could I have a very brief response, Mr. Brown, because we're going into eight minutes on this. I have to move on.

[Malcolm Brown]

Frankly, that's not been an issue. We've been focusing on the implications of Bill C-280. You're going to hear from the IRB later today. They may be unhappy with me for saying this, but I think really it's an important question for the IRB in terms of the implications it would have for them. I wouldn't want to trespass on what is, I think, largely their question to answer. It's certainly an issue that if the committee so instructs, the department can look at the questions of the implications of going back to decision-makers. But I think the government and previous Parliaments made a decision about the merits of a single decision-maker.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Brown,

Madam Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Before continuing, Mr. Chairman, I would like to know if we will follow the agenda being proposed today. Are we going to exhaust our questions and then move on to the next witnesses?

[The Chair, Conservative, Norman Doyle]

Yes.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

My questions deal with the memo you allude to on your website. What progress have you made since 2005 on the review of the refugee status determination system? I do not understand why the department persists in opposing the will of Parliament expressed here by its elected members in 2001. The issues are important for those claiming refugee status. The consequences are significant, as you have seen in the press on countless occasions. Citizenship and Immigration Canada is criticized regularly for the fact that it has no appeal section and the fact that there can be no appeal on the merits. Why does the department refuse to allow appeals on the merits of claim?

[Malcolm Brown]

I'm not intimately familiar with the website reference, Madame Faille.

There are two components to the answer. First of all, the government is much broader than the Department of Citizenship and Immigration.

The government makes a decision in terms of proclamation and that decision's been made, and the government has explained the reasons for that decision.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

You state that this is a political decision and that it is up to the government to make it.

[Malcolm Brown]

It is up to the government to make this decision, but one must add that it is not only the officials or the people who work at the Department of Citizenship and Immigration who make it.

Second, I would say that the current situation is different from that of 2002.

For example, there were real questions about how to manage the already extraordinary backlog that the IRB faced in those days.

So I think the government has explained the reason for its decision. It is, I think, a different question as to whether or not there's consensus on why that decision was taken.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I would like to ask you some questions.

Are there a sufficient number of members at the IRB to hear the cases?

[Malcolm Brown]

Frankly, that's a question for the IRB. It's clear there are vacancies and the government has taken steps to fill those vacancies. That's a process that's ongoing.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

All right.

The department provided us with statistics on the pre-removal risk assessment and on the experience of the officials who are called upon to make the decisions. Is it normal that half of these people have less than two years' experience and no experience with administrative tribunals?

[Malcolm Brown]

That issue was raised in December. We answered a question on the capacity...