Citizenship and Immigration Committee on May 12th, 2008

[David Cohen]

Some of it will be repetitive.

[The Chair, Conservative, Norman Doyle]

We'll take it as read then.

[David Cohen]

Excellent.

[The Chair, Conservative, Norman Doyle]

Thank you very much.

[Statement by Mr. David Cohen]

The government has tabled amendments on March 14, 2008 to the Immigration and Refugee Protection Act (IRPA). The stated goals of the government are to create a more responsive/streamlined immigration system, and to reduce the existing backlog of primarily skilled worker applications. The desired goals can be wholly achieved without gutting IRPA of its fundamental Canadian values of fairness and transparency.

[The Chair, Conservative, Norman Doyle]

In its present form, IRPA and its accompanying regulations permit the minister to: increase the pass mark, R76(2) to limit the number of fresh applications as a means for managing the backlog; make use of “restricted occupations”, R73 and R75(2), to better match the flow of immigrants to the labour market needs in Canada; and facilitate the use of “arranged employment”, R82, whereby an offer of employment from a Canadian employer can speed up the processing of the application of the skilled worker the employer would like to hire.

I am appearing before you today because of a story my late grandfather told me when I was young and impressionable. He spoke of how his younger sister fled Poland just ahead of the Nazi occupation and how she managed to secure a residency permit in England, valid for one year. My grandfather did everything he possibly could to convince immigration authorities in Ottawa to allow her to join him in Canada. His plea fell on deaf ears--the door to Canada was shut. In the end, his sister was expelled from England back to Poland. She was never heard from again.

Truth be told, we haven’t always had an immigration policy to be proud of. I have been practicing immigration law for more than thirty years, and I state candidly that discriminatory discretion was only wrung completely from our immigration system, at least as it pertains to economic immigrants, in 2002 with the introduction of the Immigration and Refugee Protection Act, or IRPA.

IRPA, in its present form, is an exquisite piece of legislation, whose beauty comes from the fact that the selection of economic immigrants is based purely on objective criteria. At its core is the fundamental principle that everyone who chooses to submit an application to come live in Canada is entitled to fair and equitable consideration.

The government is now proposing to amend IRPA through Bill C-50, which was tabled in the House of Commons on March 14, 2008. Under the proposed changes, the Minister of Immigration would have the authority to issue instructions to immigration officers related to the processing of applications--more specifically, instructions as to which type of applications to process quickly, which applications to hold for processing at a later date, and finally which type of applications to return to sender without any consideration at all.

These amendments would change our immigration selection system from one that provides fair consideration to all applications in the order they are received to a system based upon discretionary selection and outright denial of consideration. This would expose the immigration system to the type of discretion that IRPA eliminated. In practice, the minister will have to delegate the exercise of discretion to individuals within the department to carry out such instructions. This will unavoidably make Canada’s selection system vulnerable to human bias, or worse. I would like to place on record a copy of a post from the public forum located on my law firm’s website as a practical example of the danger of discretionary selection.

The minister states that these amendments are required to streamline and modernize the immigration system. In particular, the government intends to use the amendments to clear out the current backlog, consisting primarily of 600,000 skilled worker applications. In addition, the government desires the ability to prioritize applicants with occupations that are in high demand in the Canadian labour market.

The backlog exists because the number of new applications received every year is more than the number of visas issued during the year. IRPA regulation 76(2) foresees this eventuality. It empowers the minister to set the minimum number of points required to qualify as a skilled worker, keeping in view the “number of applications” currently being processed versus the target number of immigrant visas to be issued. The minister may, therefore, simply raise the pass mark above the current level of 67 points to curtail the number of fresh applications. People can count, and they won’t pay $550 in government processing fees only to be refused on the merits of their application.

The minister may also make use of “restricted occupations” as provided in IRPA regulations 73 and 75(2). After conducting the appropriate consultations with provincial governments and other relevant stakeholders, the minister may designate as restricted certain occupations for which there is little demand in the Canadian labour market. Potential applicants with experience in a restricted occupation would receive zero points for their work experience and therefore would have no incentive to apply. This would ensure that Canada selects a higher number of immigrants that meet the immediate labour market needs within the country.

Finally, the present legislation allows for “arranged employment” in Canada. A genuine job offer from a Canadian employer entitles an applicant to an immediate temporary work permit or accelerated processing of a permanent resident application. This allows the “best and brightest” to be brought to the head of the queue.

The subject of backlogs is more complicated than meets the eye. The government’s proposal gives the impression that the backlog is a single line of 600,000 applicants stretching as far as the eye can see. In fact, the reality is very different. Some visa offices have huge backlogs, with a five-year wait to simply be considered for immigration. Other visa offices can process an application to conclusion in a little more than a year. This situation is a direct result of the fact that the minister sets yearly targets for visa issuance at each visa office and assigns the resources necessary to achieve those targets.

Let’s compare how this all works out at two specific visa offices. In 2007, the target for economic class visas at the visa office in Buffalo was 24,500 against an inventory of 43,000 applications. The target for similar applications at the visa office in New Delhi was 10,500 visas against an inventory of 135,000 applications. How these targets are set is a whole other issue, but I’m leaving that aside.

The distribution of applications is, as noted above, quite uneven. If one were to turn off the tap for two or three years to clear out the existing backlog, some visa offices would have no applications to process at the end of year one and most visa offices would have very little inventory at the end of year two. Then in year three, the government would only be issuing visas to the remaining applicants, who would overwhelmingly be from India, the Philippines, and the Middle East. This is, of course, an untenable eventuality.

We should, therefore, expect that a new set of instructions will be issued at the end of year two, allowing the government to open the tap again at certain visa offices but not at other visa offices--i.e., New Delhi, Manila, and Damascus. Once you have a society that condones selectively closing its doors to applicants, even temporarily, it’s not a big step to becoming a society that is comfortable opening its doors only to some, but not to others. Canadians of Chinese, Jewish, and Italian descent won’t be shocked.

IRPA is fair and it can work. Let’s not shut our door.

I wish to place on record a recent posting on our law firm website’s public forum from an individual who purports to be a Canadian immigration officer. I am satisfied from all the evidence at my disposal that the person posting is, in fact, a Canadian immigration officer. Reference to the particular ethnic group identified in the posted message has been removed.

Posted in forum: Thursday, December 06, 2007, 8:26 a.m.

Here you will read the RANTing of a Canadian Immigration Officer. I've HAD IT!!!! I am so sick and tired of dealing with all the liars, cheats, frauds etc... This line of work has tainted me to the point that I can't even look at most immigrants anymore without pre-judging them as losers. Especially those from xxxxxxxx. I don't get the whole xxxxxxxx onslaught we're seeing now. Is xxxxxxxx such a shitty place to live? And why can't xxxxxxxx marry someone in the country where they live, why must they insist on marrying their brothers and sisters and cousins just for immigration purposes... yuck. I'm tired of finding so goddamn many immigrants who arrive here and jump on the welfare system before they've even been declared “landed”. Then they think they're fooling someone when they get off welfare for 2 months to submit a sponsorship application. I've seen so many phony marriages that I'm approaching the point where I wish they would remove spousal sponsorship as an option. If you can't find someone here worth spending your life with, MOVE. If only a guy/girl who currently lives in xxxxxxxx is worth marrying, then perhaps you should get your ass back to xxxxxxxx since obviously the quality people are all there. xxxxxxxx Immigrants have destroyed certain communities... xxxxxxxx for example has become xxxxxxxx part 2 (commonly referred to as xxxxxxxx). I feel sorry for any english speaking students in the schools in xxxxxxxx, because they're the true minority now. A recent news story showcased one school that has over 400 new kindergarden students, 93% of whom did not speak english... Well this felt good to rant a bit and I'll probably do more of this...but for now I have to go deny a few people entry to my country.

[The Chair, Conservative, Norman Doyle]

Mr. Ryan, you don't have any statement.

We'll go to Mr. Karygiannis for seven minutes, please.

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

Mr. Creates, I was very surprised by your comment about doing the 180 degrees, but I guess you've read the legislation and have seen what some of us were seeing also.

My question is on a more general scenario. Any of you can answer it.

The minister is saying we're going to allow doctors to come into Canada faster. I find that a little preposterous. We do have doctors on the inventory list of 900,000 to 925,000 cases. A doctor, to be allowed into Canada...that doctor, when she or he comes into Canada, will not automatically be guaranteed a place to work. They will have to go through the colleges in each province. They will have to qualify in order to work. And some of the provinces are allowing 48 doctors per year; others are allowing 50.

So I am perplexed when the doctor.... I mean, the minister is playing with the senior Canadians and the Canadians who...and some of the people who live in rural Canada certainly do not understand immigration the way that some practitioners like you do, or some of the members of Parliament who are involved in it every day.

The minister says we're going to allow more doctors in, then stops it there and doesn't qualify that, “Yeah, if we do, too bad, so sad; they won't be able to practice.”

I'm wondering if in 30 seconds some of you can qualify that.

[Warren Creates]

Sure, I'll answer that.

We have an issue with a shortage of doctors, particularly in rural areas in most of Canada. That's widely known by everyone. It's an accreditation issue, as you described, with the provincial licensing bodies, the professional licensing bodies. It's not only true of doctors; it's true of lawyers, teachers--pick one. There has been and will always continue to be an accreditation issue. Self-regulating bodies tend to protect their own, and it's been very difficult to get foreign doctors credentialed in the province of Ontario particularly, but elsewhere too.

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

So you would agree that, if I were to make the statement...that when the minister uses the word “doctors”, she's really misleading the Canadian public.

[Warren Creates]

I don't want to accuse the minister of misleading the Canadian public, as I appear before you today. I would say there is a disconnect between welcoming doctors and then automatically--

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

No, the question is if I am accusing the minister of misleading the Canadian public. Do you disagree with me on that statement?

[Warren Creates]

I understand what you're doing, and you've asked me to agree or disagree with you. I'm saying there's more to this story than meets the eye. I think it could have been a political statement she made, because as a practitioner I know it's very difficult to get medical doctors to qualify in the province of Ontario and elsewhere.

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

I crunched some numbers a couple of months ago, and they certainly haven't been challenged by either the parliamentary secretary in the House or the minister herself. Those numbers showed that between 2005 and 2006 there was a 20.67% increase overall in the amount of time it took somebody to come to Canada throughout the system. In 2007 it was 7.69%. In 2005 there were 260,000-plus, and in 2007 there were 235,000 to 240,000--a 10% decrease. The minister is going around saying we'd like to let more people in, and we've got to deal with the backlog, etc. Yet they're taking longer to process and allowing fewer people in.

Couldn't one of the ways to resolve the backlog be to increase the number of people coming into Canada?

[Warren Creates]

Obviously, yes, it could. As one panel said, either this one or the previous one, you either reduce the intake into the inventory or increase the output. Either way you're going to control this backlog.

The biggest issue I see coming, with what's going on in Canada now, is a very related point. Immigrants are making less money now than they did five and ten years ago, so the selection system is not what it needs to be. We're selecting immigrants, they're coming in, and they're having trouble settling and getting themselves established. Their incomes, based on their tax returns, are less than those of the Canadian-born control group.

So when I said to increase the pass mark from 67 points to 72 points, I was saying you'd get better quality applicants and fewer of them. We'd have the 250,000 or 265,000--I think there's pretty much a consensus in the country on that--although I know some parties want 300,000. But those are small things to worry about. The biggest issue is selecting immigrants who establish quickly and have good incomes. It's a win-win situation.

We're in a downward trend. Australia increased their pass mark, decreased their processing time, and decreased their backlog and inventory. They're processing in two years. This minister has alleged that we're going to get it down to one year, but that's not going to happen. I've been doing this for 22 years, and it will not happen. We're dealing with such massive numbers that for the minister to say we can process permanent resident applications--skilled workers or otherwise--in a year, I don't accept that as ever being true. Two years is not unacceptable.

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

Picking up on that, sir, would you say that if the minister under the proposed system were to fast-track skilled workers and pick and choose them by country or category, that wouldn't do anything to decrease the backlog? The backlog is going to stay there, and the backlog is 925,000 cases. If right now on average it takes four to six years, it's going to take even longer, because we can't dive in there and get the applicants we need, the skilled workers, to the front of the line.

[Warren Creates]

We all know that Bill C-50 and the amendments for IRPA are not going to have any effect on the backlog, other than it will decline in time, as you describe it, which is a good thing. It should never have become what it is, and it must decline. It will decline by attrition either because people die, they migrate to another country, or they give up. That's why we need to find out how many of those 925,000 are still good, intending applicant. That's not very difficult to do. It involves a letter and a licked envelope with a stamp on it, to find out whether 925,000 people are still interested in coming.

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

How many of the clients in your practice are saying they want to get out of the system because it's taking too long? Is it 5%, 10%, 20%? Any one of you may answer.

[David Cohen]

I'd like to add a couple of comments to what you had asked before to my colleague Mr. Creates, that it appears from the studies that are coming out now that immigrants who came to Canada more recently are not doing as well economically as immigrants who came to Canada some 30, 40, 50 years ago. It goes back to the 1960s.

I would suggest that the measurement being undertaken is really not the proper one. Immigrants who came to Canada in the 1950s and 1960s were primarily western European. They looked a lot like Canadians looked like in those days and they didn't have a very difficult time finding jobs from Canadian employers. Immigrants who have come to Canada since the 1990s in particular are, for a large part, visible minorities.

So I think the real test ought to be that we measure how newly arriving immigrants who have come in the 1990s are doing against visible minorities born in Canada. We may not get the same result as we're getting.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Cohen. I'm sure you'll want to continue your remarks, maybe with Mr. St-Cyr.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Thank you very much, Mr. Chairman.

Thank you to all for coming. I listened to the presentations with great interest, including that of Mr. Creates who called our attention to some fundamental principles that apply to waiting lines.

Before being elected to Parliament, I was a computer engineer. I had the opportunity to study waiting line management and I read quite a few documents on this subject matter. One of the basic premises is that if you only move people around inside a queue, the length of the line will not change. Nothing will change. You summed up the situation very well when you said that there is only way to reduce a waiting line: have an output that is greater than the intake. Otherwise, you do not reduce the backlog.

In your presentation, you mentioned productivity in the processing of applications. How come it takes so long? Is our system too complex? Is it normal for it to be so complex and difficult to know if one is eligible to come to Canada?

[Warren Creates]

I'll answer that.

Our immigration program is a good system. We have a lot to be proud of in this country with our immigration program--in Quebec, equally with the other provincial nominee programs, and the federal system itself. There's a lot of fat in it though. There are a lot of unproductive components. If you have some change engineers--I think you all know what I mean by that--to do some consultations on how to overhaul the system without it being totalitarian, which this system will become with C-50 if it's passed, it would be possible to make the forms more simple, to make the officers more productive.

I brought my staff here today. They get requests on files we're involved in. We get letters every day from different embassies and consulates all over the world asking for documents that we've already provided.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

In our office also.

[Warren Creates]

It's very common. That results in processing resources going into requesting documents we've already given. The criminal record reports expire after six months, the medical examination expires in 12 months, and so on. It is very unproductive to be living in a system, in this modern world that surrounds us, where we get requests for documents we've already provided or where, because of the slowness and passage of time, things have expired.

If you get change engineers in this department it would be a good investment. The $22 million they're talking about--the impact on the budget by C-50 and these changes to the immigration act--and more, should go into the system for change-engineering it, for using the existing platforms, for training the office to be more productive and less redundant, and for just fine-tuning an existing good program, making it transparent and less totalitarian. You didn't have to go to this totalitarian style of legislation to get to the goal that we all around this table want to see happen.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Very well.

When the minister appeared before the Standing Committee on Finance, she assured us that the legislation would have no impact on Quebec's immigrant selection process, that the province would be able to continue to select its immigrants and that there was no risk of seeing the province's government's will obstructed.

Witnesses who preceded you told us the opposite. Since the crack is wide open, nothing would prevent the minister from issuing instructions restricting the processing of applications in Quebec. In your opinion, who is right? The question is for anyone of you. If this bill is adopted, could it eventually grant authority to the minister to process Quebec's applications, the way it would deal with those under any provincial nominee program?