Citizenship and Immigration Committee on May 7th, 2009

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Oh, sorry; I apologize. I didn't mean it that way.

[The Chair, Conservative, David Tilson]

You're next, sir.

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

Mr. Chair, I have a point of order.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I apologize for that. I didn't mean that.

[The Chair, Conservative, David Tilson]

See what you've done? Now we've got everybody all upset.

Mr. Karygiannis, on a point of order.

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

Mr. Chair, this is not the first time the honourable member has alluded to a member not being in the room. He's done it before. He did so when I had to take a phone call and was outside the room.

I would ask you, sir, to caution Mr. Calandra to follow--although he's new--the proper procedure. This is not the first time, and it should be the last time, that an honourable member's presence in the room has been mentioned.

You have to follow procedure.

[The Chair, Conservative, David Tilson]

That is a point of order.

Mr. Calandra, you may ask your questions.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

You had mentioned a discussion with the UNHCR. There was some discussion earlier about an appeals division. I was wondering if you might just elaborate a little bit more on those discussions. I thought that was a very interesting point. It would be helpful, I think, if all members heard that yet again.

[Richard Fadden]

Thank you.

As Mr. St-Cyr said, this has been a topic that has been of interest for some time. Not Mr. Kenney, but one of the previous ministers I worked with in CIC, had the high commissioner in Ottawa to talk about refugees generally and the Canadian system in particular. He basically said, as I stated earlier, that the UNHCR has no complaint to make about the Canadian system. He said that from their perspective we have the best one in the world. One of us who was at the meeting--I can't remember who--asked him, “What do you think about an appeal division?” I'm probably breaking a confidence, for which I'll have to suffer the pain, but he said, “Somebody in my position can never say that an appeal division is a bad thing, but in our view we stick with what I said earlier: you have virtually a perfect system; people are not thrown out of Canada arbitrarily and we really have no complaints.” As a matter of fact, the UNHCR regularly peddles—if that's the right word—the Canadian system around the world. They do that systematically.

We in our ministry have gone around the world explaining our system, because it is the best one that we have. At one level there's no perfect system. I'll be the first one to admit that. Putting in the RAD is not going to make it perfect. We could put in two RADs and it still wouldn't be perfect.

Mr. St-Cyr argues that a greater jurisprudence developed by the RAD would help materially in the management of the system. Well, I'm not so sure. The Federal Court's jurisprudence on refugee issues is quite comprehensive. There are a lot of cases that bind the refugee protection division. I would also note that the refugee protection division does not deliver reasons in writing, except in negative cases. So we have a system already that I think is quite significantly tilted in favour of those who might not get refugee status. We don't think this is going to help.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

It's clear that what you're saying is that our system is pretty much an example for the entire world, but we should always look for ways of improving. It's an example for the rest of the world. It's an example that I'm sure the UNHCR would like to see in virtually every other country in the world.

[Richard Fadden]

That's right.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Again, recapping a bit, it's safe to say that the addition of an appeals division would simply make the system more cumbersome, slower, and perhaps even less effective for those who are true refugee claimants.

[Richard Fadden]

I think that's absolutely right.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

The RAD has been on the books, as such, for how long?

[Richard Fadden]

Since IRPA was enacted by Parliament, in the first instance, in 2002.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

And again, why was it...? It was simply never enacted as such because of how well the system was working, would you say?

[Richard Fadden]

At the time, Parliament provided the government with the capacity to decide the proclamation dates of various parts of the statute. Large parts were put into effect, and the decision was made at the time.... As I understand it, there was already a huge backlog. There were already beginning to be problems with the system, and the view of the day was that the system did not require the RAD in order to be effective. As I think Ms. Mendes said, at the time there was a fair bit of discussion on whether there was a direct link between one or two commissioners on the one hand and the RAD on the other.

I wasn't there. I understand that there was a debate and that there were a variety of views on this issue. In the end, the main reason the government of the day, which I believe they publicly stated, would not put the RAD in operation immediately when they went from two to one was because a comprehensive analysis of the decision-making by the two-commissioner method was made, and there was only disagreement in 1% of the cases. A judgment was made that 1% of the cases did not merit the installation of this not insignificant appeal process.

As I mentioned a moment ago, subsequent to that we've been able to ascertain—I was saying this to Ms. Mendes—the acceptance rate did not drop when we went from two commissioners to one. I think the government of the day, and I believe the bureaucracy, was of the view that taking the system in its totality, people were getting fair and reasonable treatment and that a RAD was not necessary.

[The Chair, Conservative, David Tilson]

That's it. You went way over, so we have Ms. Grewal next.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

I would like to say that we know that there are those who would like to take advantage of our generosity and take a place away from those who are genuinely in need of our protection. So would the RAD cause more of our resources to be taken away by processing applications from people not in need of our protection? Could you comment on that?

[Richard Fadden]

In the end, if we have a RAD, we're going to have to ask the government and then Parliament for more money. People who are now spending their time and effort on the first level of determination are now going to have to spend it on appeals to the RAD. We think it's simply just going to add a layer of bureaucracy. The RAD is not going to be a court, so the amount of deference given to it by the RPD will be relatively limited as compared to the Federal Court.

I have to be honest with Mr. St-Cyr: the RAD is not going to grind the entire system to a stop, but it is going to add time, money, and burden. In the end, we don't think that individual cases are going to be materially better dealt with, because it's a paper review, there are no attendants, and there is no new evidence. If you take it to the Federal Court, you have all of those possibilities.

Mr. St-Cyr has argued on a number of occasions that the Federal Court cannot review sur le fond, as he says. I'm not here to act as a lawyer, but before the courts you have questions of law, of fact, of mixed fact and law, and jurisdiction, and nothing else. If that's not sur le fond, I don't know what it is. The Federal Court has systematically said that it can look at any aspect of RPD decisions. I agree with Mr. St-Cyr that the way the law is constructed, it doesn't appear that it can do that, but this happens all the time. Parliament says one thing and the courts take a different tack, and since they're the ones doing the judgments, they win.

[The Chair, Conservative, David Tilson]

Mr. Karygiannis.

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

Thank you, Mr. Chair.

Mr. Fadden, you stated something that irked me. You said that if these people are given an extra five months, it will add to the cost of the health care system, welfare, and you went on. You made it sound like these people are here as freeloaders.

[Richard Fadden]

A lot of them are.

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

I respectfully put it to you, sir, that a lot of people who are here seeking refuge have work permits. When people are called in to have their PRA, they're asked to bring their work permits. Their kids are going to school, and sometimes we have to stop their schooling in order to take them out.

You just stated again that a lot of them are. However, there is something about “true or false” on the CIC website. There's an e-mail circulating that says not to apply as a pensioner, apply as a refugee. You are overwhelmingly trying to diffuse it and say no, that's not the case.

I'm just wondering, sir, if you want to clear up what you're saying, that a lot of the people here are freeloaders. As an individual who came to this country seeking a better life and had to seek refuge at the airport, I take great exception when a deputy minister of the crown says that people in this country are freeloaders. So sir, I'm going to give you an opportunity to withdraw that remark.

[Richard Fadden]

Thank you.

Freeloader was your word, not mine. There are many people in this country who apply for refugee status and who, after going through the entire system that we have, are held not to be refugees. While they are in this country, prior to either removing themselves or being removed, my department pays for their health care, the provinces pay for housing in many instances and for social costs. You're absolutely right, some of them work. But a lot of them don't. It is a significant cost.

I want to be very clear: I'm neither for nor against an individual being a refugee. I'm for the systematic and reasonable application of the law. The statistics that we see clearly show us that not everybody who applies for refugee status is a refugee. That's my only point.