Citizenship and Immigration Committee on March 29th, 2007

[Malcolm Brown]

I think that's right.

Without trying to get drawn into a conversation about what happened in 2002, some pretty significant questions would need to be answered before there could be a coherent implementation of the RAD in terms of who's eligible. Committee members need to be fully aware of the implications of the absence of transitional measures and an instantaneous backlog of an additional 40,000 people. That's, I think, our estimate of the potential number of people who might apply if there are no traditional transitional provisions, in terms of who's eligible to apply, in terms of decisions that have been made two or three or four or five years ago.

That's one example. Our colleagues from the IRB can better talk to you about the implications that would have for them.

The other piece of this is, just to reiterate, that all the assumptions on lead time, which are the subject of some debate, are all premised on assuming there is no backlog and the IRB is ready to go. They can talk more about the implications of that, but the consequences for implementing a decision without the appropriate structures in place are pretty significant, I think.

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

There's no reason you couldn't have, in the form of Bill C-280, transitional provisions that would ensure there would not be a backlog created by retroactive application. Would you agree that you could also deal prospectively with the anticipated time of implementation and allow for that to take place within a reasonable timeframe to ensure that it got implemented, and that both those issues could be dealt with by drafting additional provisions to Bill C-280, as we now have it?

[Malcolm Brown]

I think that's absolutely right.

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

The other aspect I want to talk about a little bit is that some witnesses in previous appearances before the committee--Peter Alterman, for instance, as well as another witness--indicated that Canada's model is based on getting it right the first time and providing other avenues of recourse through the CIC-administered pre-removal risk assessment process and discretionary assessment of humanitarian and compassionate factors. That's the model that Canada has, which maybe is unique compared to other jurisdictions.

Taking Bill C-280 and making an appeal division in the midst of that model might to some extent be counter-productive if you're not changing the model. Can you describe whether I'm right in the assessment of the model we have in Canada and how it may be difficult to add something to a model that's already put together without looking at the whole model, including the RAD--in other words, looking at how you might deal with the system as a whole as opposed to piecemeal?

[Malcolm Brown]

I'm going to try to separate a formal government position on this. I think ministers are on the public record on this question, but there is no question that piecemeal change is problematic, and piecemeal change that we haven't thought through in terms of transition absolutely. If you're going to change a system and if you've decided the system has these faults, only going after one of the questions is probably not the way to do it. From a public policy perspective and from a reform of the system perspective, it's better to look at its entirety. The net result of a piecemeal approach is that we take a system that is already very lengthy, and I don't think there's any dispute about this--well, no, I think there is dispute, but our position, the government's position, is that the process would get longer, and that's probably not the intended result of a reform initiative.

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

What I'm gathering from what you're saying is that you have a system designed in one fashion, and if you add another component without modifying the rest of the system, you're simply adding more process, more time, to a system that already is taking inordinate lengths of time--in some cases, years.

[Malcolm Brown]

I think that's right. I'd also add that we now know more about the system and how it's working than we did in 2002 when RAD was initially proposed. I think you can make the case that some of the public stakeholder issues around RAD at the time.... We didn't have a lot of split decisions of the two-member panels. We have a system that is still widely held in terms of public support and international support. We should be assessing the whole system before we make a change in a particular piece of it.

[The Chair, Conservative, Norman Doyle]

Okay. That was 7 minutes and 27 seconds, just to be fair. I had the same time for most members.

Mr. Telegdi.

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

Thank you very much, Mr. Chair.

Mr. Brown, can you tell me how long you've been with the department?

[Malcolm Brown]

Yes, I joined the department two years ago.

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

You've only been in Citizenship and Immigration for two years.

[Malcolm Brown]

That's right.

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

Ms. Aucoin, how long have you been with the department?

[Micheline Aucoin]

Since September 2005.

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

Mr. Stevens.

[Eric Stevens]

I think over a decade.

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

So you have the most experience. You were actually around when the appeal division was put in the last immigration act.

Mr. Chair and members of the committee, we're talking about delays. We have one-third vacancy on the refugee board and that causes all sorts of delays.

Mr. Brown, you mentioned you've been in a refugee camp. Well, 50 years ago I was a refugee in a refugee camp--

[Malcolm Brown]

I know that.

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

I have been back to refugee camps. And as a member of Parliament, I have dealt with cases where bad decisions were made and people were sent out of the country. I don't know what happened to them, in some cases. I'm haunted by those things. It bothers me. So the appeal division is not going to be perfect, just as the Supreme Court doesn't always make perfect decisions, but by the time it gets to the Supreme Court and they make a decision, I will be able to sleep at night.

I'm going to read--and I suggest you listen, because you haven't been with the department very long--from a clause-by-clause manual that came out when we were dealing with the immigration and refugee act: “The establishment of this right of appeal and new Division would improve the refugee determination process in Canada by enabling the correction of clear errors in decisions of the Refugee Protection Division without recourse to the Federal Court and by enhancing”-- and I underline the word enhancing--“the quality and consistency in decisions through the provision that the decisions of three member panels of this Division are binding on the Protection Division on questions of law.”

One of the problems we have had, and it has certainly been a lot worse with the one-member panel, is that just as the Federal Court of Appeal sets the rules for the Federal Court justices, so does the putting in place of a refugee appeal division....

This discourse I have heard in the last 40 minutes or so is straight out of Yes, Minister. I really cannot believe, to the extent that the will of Parliament...and it was the will of Parliament to put in a refugee appeal division. I hope you understand that the refugee appeal division is going to pass, and we're going to hold the government accountable if it doesn't act upon it.

And I dare say I am somewhat disturbed that a person who holds your position has such little experience in the Department of Citizenship and Immigration.

[The Chair, Conservative, Norman Doyle]

Thank you.

We only have about seven or eight minutes left. I'm trying to get a couple of minutes for each of you. If we can get three, three, and three, we can probably break for a few minutes.

Mr. Gravel, go ahead, please.

[Raymond Gravel, Bloc, Repentigny, QC]

I simply want to make a comment, because I am not an immigration specialist. Legislation was passed in 2002. I do not understand why we would be obliged to create new legislation in order to enforce another act. I have a problem with that. In the end, you seem to be defending the non-enforcement of the law.

Mr. Brown, you said that it was possible to turn to the Federal Court of Appeal and that this more or less replaced an appeal section. However, numerous witnesses came here and told us that the Federal Court of Appeal was inaccessible, that only a small percentage of people could get access to it. How can we talk about justice and fairness for refugees who have no other recourse when their application is turned down?

The legislation must be enforced as quickly as possible. If Bill C-280 is not passed, I will be very disappointed. This bill is not intended for animals or dogs: it is intended for human beings. I think it is worth taking more time in order to achieve results that will be more fair and just for all the refugees who come to our gates.

[Malcolm Brown]

I am not sure I heard a question.

[Raymond Gravel, Bloc, Repentigny, QC]

It was only a comment on my part.

[Malcolm Brown]

All right.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Gravel.

Mr. Siksay, do you want to use a couple of minutes?