Citizenship and Immigration Committee on Dec. 6th, 2007

[Les Linklater]

The Supreme Court dismissed the application for leave to appeal on November 15, 2007. As the Supreme Court of Canada has declined to hear Mr. Hinzman and Mr. Hughey's appeal, this means that the Federal Court of Appeal's decision stands, as does the decision of the IRB.

In its decision, the Federal Court of Appeal stated that it saw no reason to depart from the conclusions of the board and that the appellants were not entitled to refugee status.

Mr. Chair, I should note that recent reports about these cases have compared them to those involving so-called “draft dodgers” who travelled to Canada during the Vietnam War. It is worth noting, however, that the individuals coming from the U.S. now are volunteers in the United States armed forces or reserve forces. These individuals were not the subject of military conscription, as was the case for many of those who came to Canada during the Vietnam War.

While it would be inappropriate for me to comment more on these specific cases, I will say that Canada has a fair, internationally recognized system for providing refugee status for those fleeing persecution in their home country.

Under IRPA, failed claimants may request, prior to removal, a pre-removal risk assessment, or PRRA. This is to assess, after an IRB decision, any new evidence that might arise concerning risks to refugee claimants.

A PRRA would evaluate whether a person would face risk of persecution or torture, risk to life, or risk of cruel and unusual treatment or punishment if the claimant was returned to their country of origin.

Mr. Chair, foreign nationals who wish to apply for permanent residence from within Canada may do so as a member of one of the in-Canada classes. These classes include spouses or common-Iaw partners in Canada, live-in caregivers, permit holders, and protected persons.

In addition, Mr. Chair, failed refugee claimants or other foreign nationals in Canada who do not satisfy the criteria of any of the in-Canada immigrant categories may apply for permanent residence on humanitarian and compassionate grounds.

The purpose of the humanitarian and compassionate provision is to provide the flexibility to approve exceptional and compelling cases not anticipated in the legislation.

This is a tool intended to uphold Canada's humanitarian tradition. Under it, each case is assessed on its own merits, taking into consideration several factors: the individual's establishment and family ties to Canada, for example; the best interests of any children involved; risk upon return; the hardship of having to apply for permanent residence from abroad, as well as any other issues raised by the applicant.

Mr. Chair, CIC is aware that this committee has tabled a motion calling on the government to immediately implement an in-Canada program to allow these individuals to apply to remain and work in Canada and be eligible for permanent resident status. However, this motion runs counter to having an immigration policy that is both fair and consistent in its application. By adopting it, the committee would be calling for a unique benefit for some foreign nationals, proposing that they be allowed to apply for permanent residence outside of normal immigration channels.

The Department of Citizenship and Immigration is committed to ensuring that all immigration and refugee claimants have access to the full process outlined by IRPA and that all cases are resolved fairly.

Thank you, Mr. Chair

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Linklater.

Do you have any comments you wish to make at this time, Ms. Aucoin?

If not, we will proceed immediately to questions with seven-minute rounds.

I'll go first of all to Mr. Telegdi.

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

Thank you very much.

I have a couple of questions.

There's such a thing as an internationally recognized conflict that people are engaged in and that has come under the auspices of the United Nations, or under the auspices of NATO or one of the organizations that we belong to. This, in particular, seems more akin to Vietnam, which was done in the absence of any one of those umbrellas. Do you care to comment on that?

[The Chair, Conservative, Norman Doyle]

One of you may answer.

[Micheline Aucoin, Director General, Refugees Branch, Department of Citizenship and Immigration]

I think Mr. Linklater mentioned in his opening statement that a parallel was made with the Vietnam War and the difference in the immigration rules. The Americans who came to Canada during the Vietnam War did not come as refugees. They were admitted to Canada as visitors and then applied for permanent residence from within Canada in accordance with the immigration legislation at the time.

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

I have another question on that.

Given that we have the International Criminal Court, and the court is supposed to respond to atrocities and what have you that take place abroad, here we have.... Now, the United States is not a signatory to that, but it seems to me that if you look at some of our citizenship revocation cases, we're revoking citizenship from people for having served as interpreters in war. So what do you do when you're into an illegal war? What do you do when you have war crimes taking place on a large enough scale that it has to trigger some kind of review mechanism on the whole campaign?

A person who signs up to be in the military has reasonable expectations that they're going to be partaking in campaigns that come under some kind of umbrella. The thing that is so very troubling about these cases is that they don't.

The coalition of the willing is getting to be less willing every day. The alliance has pretty well fallen apart. If you're a young person and you sign up to serve in the national guard--first of all, to protect the homeland, and secondly, to take part in conflict--you really expect to have some kind of legitimacy for the campaign you're undertaking.

How do you cover conflicts that don't have any legitimacy?

[The Chair, Conservative, Norman Doyle]

To the officials, I realize the problems you're having here. You're being asked really to decide upon the legitimacy or lack of legitimacy of the war when of course these things haven't been decided in the public domain. Everyone has their political opinions on whether the Iraq War is legal and whether the Vietnam War was legal or legitimate.

So I realize the problem the officials would have, and they seem to be demonstrating that they have some problems answering these questions.

I'm not going to direct you, and I shouldn't direct you, on how to answer the questions, but you're free to answer the questions in whatever way you feel is appropriate.

[Les Linklater]

Mr. Chair, I believe the question around the legitimacy of the conflict in Iraq is beyond the purview of officials of Citizenship and Immigration Canada.

[The Chair, Conservative, Norman Doyle]

That's what I thought you might say.

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

No, I understand that. I just wanted to raise the difficulty that comes along these lines.

This is something the world community is struggling with, trying to put conflicts on some kind of legal basis, and this conflict really doesn't seem to have one. Any justification used to go into Iraq has been pretty well eroded. American public opinion is very much against it.

I could see somebody saying, “We're going to sign up to defend our homeland. We're going to sign up to defend just interventions in the world.” But when all the rationale that one signs up for disappears, that leaves the individual with a very strong dilemma in terms of what they are able to do.

I guess I don't see that much difference between this and Vietnam.

[The Chair, Conservative, Norman Doyle]

Again, I can see the officials are having a hard time.

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

I'm going to pass over to Mr. Karygiannis.

[The Chair, Conservative, Norman Doyle]

Yes, okay.

You have one minute and nine seconds.

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

Mr. Chair, within the department is there any recollection of or any notes on what happened back when the Vietnam War was going on? Did the department at that time have the same agenda as it has right now, saying, “No, we don't want them”, and it was forced on them by the politicians? Were the bureaucrats resisting at the time of the Vietnam War, as we see the resistance today?

[Les Linklater]

Mr. Chair, from what we understand, looking back, most of the Americans who came to Canada during the Vietnam War did not come as refugees or as individuals seeking protection or status as convention refugees. Rather, they came as visitors, as conscientious objectors. Under the Immigration Act and regulations in place at the time, they were able, by and large, to apply for permanent residence from within Canada based on their personal attributes--their skills, their language ability, their education.

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

Mr. Chair, I find that hard to believe. Pre-1976, legislation was not as it is today. There were no education points. There were no points for family in Canada or anything else. So I find that very hard to believe. I think those people applied for refugee status at the time, and we gave it to them.

[The Chair, Conservative, Norman Doyle]

A very brief reply because we've gone over into eight and a half minutes.

[Les Linklater]

Mr. Chair, from what I understand, most of these individuals were treated by the act that was enforced prior to 1978, and at that point there were opportunities for personal assessments to be made, based on professional attributes.

[The Chair, Conservative, Norman Doyle]

Thank you.

Thank you, Mr. Telegdi, Mr. Karygiannis.

I will now go to Madame Faille.

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

Thank you, Mr. Chair.

Mr. Telegdi has raised the question of legal or illegal wars, but I understand that it may be difficult to answer that, given the weight that the United States carries on some international committees.

On the other hand, I would like to know your opinion on paragraph 171 of the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status. I think this is where my colleague was going.

171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.

In order for that section to be applied, is it essential that there be a United Nations resolution or a large enough number of countries that do not agree with the occupation, in the case of the war in Iraq, for example?

[Micheline Aucoin]

Mr. Chair, the Immigration and Refugee Board of Canada, the IRB, has heard argument on paragraph 171 of the United Nations guide, for example in the public cases of Mr. Hinzman and Mr. Hughey. It has held that the paragraph applied to underground military actions, in other words, things done during war, and not the legality or illegality of the conflict as a whole.

In the judicial review of the IRB's decision, the Federal Court judge examined the question of paragraph 171 and concluded that in fact the IRB had not erred in its judgment, and that in the case of a foot soldier the legality of the war was not in issue.

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

When you refer to a foot soldier, you are talking about the infantry?

[Micheline Aucoin]

Yes.

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

Are you concerned about the fact that soldiers might circumvent the chain of command or the political decisions made by a country in time of war?

Has the IRB decided not to grant refugee status to foot soldiers because they have a specific role to play in time of war? Is it because they have a military contract and you don't want to set a precedent? It would mean that anyone at all could decide not to go to war because he or she didn't agree with the government's policies.

[Micheline Aucoin]

First, it is not the job of senior government officials to interfere in or comment on the decisions of the IRB or the Federal Court. We can only report the IRB's decision, which was public in this case. The same is true of the decision of the Federal Court and the Federal Court of Appeal, in this particular case.

The IRB's decision was actually based on something else: the fact that in its view there was state protection in the United States and the claimants had not sought the protection afforded in the United States.