Citizenship and Immigration Committee on May 7th, 2009

[The Chair, Conservative, David Tilson]

Very briefly, because we're right at the time.

[Olivia Chow, NDP, Trinity—Spadina, ON]

And PRA only get 3%.

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

Once again, there is no case law in 90% of cases because the Federal Court of Canada simply gives no reasons for its decisions.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, Mr. Chair.

I want to go back and get from Mr. Fadden his response to Mr. St-Cyr's comments.

One of the foundations that Mr. St-Cyr builds his case on is the inadequate success rate of our current system. It would seem to me that the success rate, quite frankly, has nothing to do with whether a process is working or not working. Some would argue that the less success we have, the better a particular system is working. Some argue that the more successful the system is and the higher the percentage of acceptance, the better the system is. This is not, as I understand it, why this....

The whole process that we have put in place as a federal government does not in any way, shape, or form, in any piece of the legislation that pertains to it, or any of the regulations, speak to some sort of informal or formal success rate of the applicants being a reason or what would justify an additional appeal mechanism for our system.

I would like to get your comments on that, just to really speak to that in itself as to where the ministry determines whether it's been successful or not.

And second, as a government we obviously are going to be bringing changes forward in fact to address some of the issues Mr. St-Cyr has brought forward. Perhaps you could indicate, or at least reinforce, that we realize there are issues within the system itself that we do want to change to make this process a much stronger and more formidable one.

[Richard Fadden]

Thank you.

I agree with Mr. St-Cyr on one thing, which is on the point that you've made. There's nothing magical about a particular percentage of acceptance or rejection. He can argue that 42% is too low; I can argue it's too high. That's not the issue.

I'm sorry Ms. Chow left. The United Nations High Commissioner for Refugees has said that Canada has the best refugee determination system on the planet. I sat opposite the high commissioner a year and a half ago and was told, “Sure, we're never going to say publicly that an appeal division isn't a good thing, but I'm telling you that if most of the countries on this planet had a system that was half as good as Canada's, we would be ecstatic.”

So the percentage of acceptance rates I think are not particularly important. What is important, though, is that our current system is being overburdened by an excess of applications that are not really sustainable in law. The addition of the refugee appeal division will add five months. It means that provinces will have to pay for education, for health, for welfare, by and large, for people who will not be held to be refugees. But because they have been enabled to stay in Canada longer, they will probably be allowed to stay for humanitarian and compassionate reasons. The practical effect of this additional five months will mean that non-refugees will be allowed to stay in Canada even though they should not be allowed to stay.

Mr. Dykstra asked if I could comment a little bit on the minister's proposals for making change. I can't talk about that in a great deal of detail. Mr. Kenney himself said on a number of occasions that we recognize the current system isn't working. It is devoting far too much time to cases where there's patently no basis in law for the person being made a refugee. I think we have to look that through.

The government has been quite successful in increasing the number of commissioners. That's been very helpful. But one way or the other, we have to find a way to deal with the increase in applications. With the world economic crisis it's going to get worse before it gets better. Adding an additional five months in a way that we believe will not substantively help the resolution of individual cases is not the way to go.

[Rick Dykstra, Conservative, St. Catharines, ON]

There are two things, just based on your comments.

I would like for you to reinforce the issue that we face in terms of systemic change to the system versus this additional layer of an appeal mechanism, which in itself seems to be a pretty reasonable thing. Could you comment further on that? What we need to do, and all parties agree, is get at this list so people do not have to wait years and years, especially those who are in camps right now, who are legitimate refugees coming with their applications to get into this country. Could you just reinforce for us that the fact that this mechanism is in place will do nothing but add to the system, versus what we're trying to do?

[Richard Fadden]

I think that's the case. The government has been very clear that it wants to welcome to Canada genuine refugees. That has been the case for this government; I believe it was the case with previous governments. That's not a matter for debate.

We are unable to see how the addition of the RAD is going to help this process. If Canada accepts a large number of refugees from abroad, we select them ourselves; they are actually taken from UN camps. If Parliament were to make some systemic improvements to IRPA and the refugee determination system, we believe that Canada could accept far more genuine refugees from abroad. Many of the people who make their way to Canada are not refugees. Many are, and they're accepted.

The point that is central to all of this is that we have probably the most liberal refugee determination system in the world. That is neither good nor bad except if you look at it in the context of what we're trying to deal with. Monsieur St-Cyr mentioned on a number of occasions the frightful thought of—he implied, he didn't say it—dozens of people being sent abroad to torture and death. Well, I defy anybody to give us a list of people for whom that's happened. In the three years that I've dealt with this file there was one mistake made. We brought the person back to Canada and we're going through the system again. Our system is very good. This RAD, which is a paper-based review--no testimony, no new evidence--is not going to materially help.

I'd take advantage of the opportunity to say something else. Mr. St-Cyr argued that the Federal Court isn't specialized. Of the cases before the Federal Court, 70% deal with immigration and refugee issues. If the Federal Court isn't specialized in refugee and immigration issues, I don't know what it is. Its jurisprudence binds the IRB in all of its components and it does guide the decisions of the IRB and the refugee protection division. To say that another body, which itself will be still subject to Federal Court review, is going to improve this process.... I'm not sure. It's going to add more time and effort.

[The Chair, Conservative, David Tilson]

Thank you.

Members, originally we said that questions would end at ten o'clock. I've now been approached by several members to extend questions. I don't see any opposition to that.

Do you have opposition to that?

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

Let's get it over and done with.

[The Chair, Conservative, David Tilson]

Okay. You know what? We agreed to this. It was a consensus before. I'm going to ask for a vote on whether we continue with questions. I've had several members approach me for questions. All those in favour of continuing with questions?

[Some hon. members]

Agreed.

[The Chair, Conservative, David Tilson]

It is carried, so we will continue with Mr. Bevilacqua.

We're now into five-minute rounds, Mr. Bevilacqua.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Thank you very much.

Mr. St-Cyr, it is often the case that points are made that don't coincide with your point of view on this particular issue, and obviously I'm referring to comments made by the deputy minister. I'm going to give you my four and a half minutes to express that or to rebut the points raised by the deputy minister.

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

First, we're going to go back to the matter of the 42% acceptance rate. I know that Mr. Fadden is a public servant and not a politician. However, I would like to make sure I'm not misquoted or that my remarks aren't twisted.

My claim is not that that rate shows that we don't accept enough refugees. I don't believe we should accept a refugee who doesn't meet the legal definition. The problem is not that 42% of people are accepted; it's that 58% of people file a refugee claim without being refugees.

The question we must ask ourselves as a committee is why do those people, who apparently aren't refugees, file a claim? I respectfully submit to committee members the fact that we don't see these kinds of results in any other area of the federal government.

If one day we had come to the conclusion that only 42% of employment insurance claims are allowed, we would say to ourselves that 58% of claimants don't understand that they aren't eligible. If the same was true of passports, we would wonder why people are applying for passports if they aren't eligible.

So why do 58% of people who file refugee claims do so without being eligible? It's quite simple. It's because they don't know. There is no body of well-settled case law. Furthermore, while it is currently possible for refused refugees to appeal in Federal Court, it is still impossible for the minister to appeal, since section 73 isn't in effect either.

Currently, quite sympathetic board members—perhaps overly sympathetic—who almost automatically allow claims, make it so that people want to try their luck by filing a refugee claim, knowing that they probably don't meet the definition.

If we had a Refugee Appeal Division and it was genuinely possible for the minister to appeal in incorrect cases, decisions granting refugee status to people who clearly are not refugees, a fairly sound body of case law would be established to enable lawyers to tell their clients that, even if they win at the first level, they will lose on appeal.

Obviously, it's said that the Federal Court renders judgments on the merits, and that there is a possibility of developing case law. However, I would respectfully submit that this is relatively anecdotic, since only 10% of applications are allowed. Consequently, there is no case law in 90% of cases. There are no reasons. Even in the remaining 10%, most of the cases—I unfortunately don't have the figures to provide you, but all the lawyers in the Barreau will confirm it for you—concern procedural matters. On the rare occasions when the court rules on the merits, these are cases in which decisions were arbitrary or capricious. So that's not enough.

I would like to continue on concerning the alleged five additional months for the processing of refused claimants' files. Personally, I don't believe any of it. It is a management principle that an effective, coherent and efficient system costs less than an ineffective, incoherent and inefficient one. I don't see how the lack of a body of case law can make our system more effective and save us money.

[The Chair, Conservative, David Tilson]

You're out of time, but Mr. Paillé has the floor, so maybe he'll let you continue.

[Pascal-Pierre Paillé, Bloc, Louis-Hébert, QC]

Before letting my colleague continue, I must say I don't understand Mr. Fadden. Everyone seems to support this proposal. The Chairman of the IRB at the time, Mr. Peter Showler, told us in a brief that the fact that decisions would be made by a single board member would raise concerns, but the appeal process would have to resolve that situation.

Mr. St-Cyr could repeat the names of the international organizations that have offered their support; I'm thinking, among others, of Amnesty International. In addition, the four political parties voted in favour of this measure.

Mr. St-Cyr, can you continue with what you were saying and give us your explanation?

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

You're entirely right, Mr. Paillé. I would add, however, that there is a matter of fundamental respect for democracy behind that. Parliament has spoken. It passed the Immigration and Refugee Protection Act in 2001. That act contained 275 sections. It didn't contain 272 or 250; it contained 275.

In our opinion, in our democratic British parliamentary system, once Parliament has spoken, the government has a duty to abide by Parliament's decision and will. When you study a part of the act such as, for example, the Refugee Appeal Division, you have to study it as a whole. So you can't say, on the one hand, that the Refugee Appeal Division would cost so many millions of dollars more and extend deadlines by so much, without considering the fact that it was adopted in the context of a reduction in the number of board members from two to one. I could very well say to Mr. Fadden that I agree that we should throw the IRPA in the waste bin: we'll have two board members to review claims, and waiting times will double. That's a coherent whole.

That's why you rightly point out that the assistant deputy minister at the time said that the Refugee Appeal Division was necessary. The minister at the time, Eleanor Caplan, also said that the appeal division was necessary to establish a balance. So there has to be a certain overall vision of the matter. We can't simply say that this particular measure will cost us a certain amount of money, since it was put in place to enable us to save money.

I'm going to draw a parallel. Some of us around the table are business men or women or have already worked in the business world. If you buy equipment and you record the value of that investment, you record the savings that you make as a result of that equipment. It's somewhat the same thing. If you consider the Refugee Appeal Division, you have to say to yourself that that is what enables us to go from two commissioners to one.

I maintain that this tribunal would increase the efficiency of our system. By having more consistency among decisions and the opportunity for the minister to appeal, which is not currently the case, far fewer claimants would file frivolous claims, knowing that they would have no chance of getting through the net. The acceptance rate would therefore increase not because there would be more favourable decisions, but because there would simply be fewer inappropriate claims.

Even if that were not the case, apart from this entire debate, are we going to gain five months, as I claim, or waste time? Is it a net real saving, when you take all parameters into account, or is it an expense, if you only consider the Refugee Appeal Division? I think this is a quite incidental issue.

For generations, civilized societies, western and otherwise, have fought against arbitrariness, have developed systems of justice based on the law and have established principles of natural justice that, apart from all the differences that may exist in the world, are universal. Among the basic principles is the possibility of appealing from a decision.

However, there is no real opportunity to appeal on the merits. I remind you of the comments made by the minister on February 10, 2009 in response to my question as to whether I was right in saying that is not possible to appeal on the merits. The Honourable Jason Kenney answered that, technically, I was right. I believe that in a progressive and modern society, even if it had the best immigration system in the world, that situation is unacceptable. I recall that Portugal and Italy are the only civilized countries that do not have a refugee appeal system.

[The Chair, Conservative, David Tilson]

Mr. Shory.

[Devinder Shory, Conservative, Calgary Northeast, AB]

Thank you, Mr. Chair.

Thank you, everyone.

This question will be to the officials this morning. The way I understand it, the number of refugee claims in Canada has been increasing at a higher rate than in most other countries. In 2008 there were almost 37,000 new refugee claims, compared to over 28,000 in the year 2007. This represents an almost 29% increase in refugee claims. It is also an established fact in our Canadian system that quite a few of these claims failed. As Mr. St-Cyr also recognized, not all claims are genuine.

Before I ask my question, the way I understand the proposed legislation or amendment Mr. St-Cyr is bringing out, this will be another layer in the immigration system itself and is basically an appeal to reason and a paper-based appeal, as is the case in most Federal Court appeals as well.

[Richard Fadden]

It will add another layer and the RAD would be a paper appeal. I would note that before the Federal Court it is not a paper appeal if you are granted leave.

I'd like to correct an incorrect impression that Ms. Chow left with the committee. It's not 10% of leave applications that are granted; it is 16%. It is almost twice what she was suggesting.

I wonder if we could just take advantage of the opportunity to make a small point. I think Mr. St-Cyr is taking the committee down the garden path on one particular point. To compare the determination of refugee status with a grant of passports or of EI is, to my mind, stretching credulity. The granting of a passport is a mechanical function in 98% of the cases. The determination of refugee status in every single case merits careful consideration of jurisdiction, law, and fact. So to compare this with passports or EI I think is underestimating the seriousness of the refugee determination system.

He also makes the point that way back when the law was passed, two commissioners determined most cases. At the time a decision was made that we wouldn't put the RAD into effect because there were two commissioners. In the end, the previous government didn't put it into effect because only 1% of the two-commissioner panels ever disagreed. So a conscious decision was made that we don't need this additional layer because we went from two to one commissioners.

In direct answer to your question, it is an additional layer. It is a paper layer. No new evidence can be introduced. We would not agree with Mr. St-Cyr with the view that just because you have a RAD, people will not go to the Federal Court. If people believe strongly in their files, they will keep going to the Federal Court.

[Devinder Shory, Conservative, Calgary Northeast, AB]

I wasn't finished, but thank you very much for the input.

The way I understand it, again, is that board members who determine any claim give written reasoning as well, whereas in the most of the federal cases, I guess specifically for the leave, no reason is given. My question here is, if the system remains the way it is and Minister Kenney does not bring any legislative changes, is it fair to say, Mr. Fadden, that if we expand the appeal process, as Mr. St-Cyr is looking at, and looking at the refugee system, our refugee system would become more attractive to non-refugees seeking an immigration process in Canada?

[Richard Fadden]

That's a difficult question to answer, Mr. Chairman. We're generally viewed today as a country to which it is exceedingly easy to apply for refugee status. I think if Mr. St-Cyr's bill is approved, that is not fundamentally going to change. The way the law is currently set out, all you have to do is to touch Canada and you can apply for refugee status. We believe that the addition of the refugee appeal division will lengthen the process and will mean that more people potentially will apply because they will have a longer period of time in Canada before their cases are resolved. The longer they stay in Canada, the greater are the chances that they will be granted humanitarian and compassionate status, despite the fact they're not real refugees.

[The Chair, Conservative, David Tilson]

Time's up.

Ms. Wong.

[Alice Wong, Conservative, Richmond, BC]

Thank you very much.

Thank you very much for coming to our committee to present your view. I definitely agree with your report. This is exactly what I presented to the House when I was given the opportunity to comment on Bill C-291. On one hand, we agree that Canada has the most liberal refugee system. Therefore we have attracted many refugee claimants, whether they're genuine or not. That is the major challenge.

I agree with what you've just said, that Mr. St-Cyr's comparison of the passport success rate with the success rate of processing our refugee claimants is actually not an adequate comparison. The EI success rate should not be used as a comparison with the refugee success rate either.

I think we all agree, all of my constituents agree, and all of the other people I've been meeting agree, that there have been a lot of challenges in the refugee system, and therefore we do need reforms. We do need to change some of the things we have been doing so that we won't deter the legitimate refugees who, because of the present system, have to wait for a very long period of time.

In your view, will Bill C-291 actually be a solution to...? For example, as soon as people get on the plane, they eat their passports or they flush them down the toilet. Then, because they've landed, they have to go through the whole system.

Thanks to our government and Mr. Jason Kenney, the last 25 Vietnamese refugees staying in the Philippines will finally be arriving in Canada. The Vietnamese community thanks the government for doing that. Those are legitimate refugees who have been waiting there for so many years because of a system that needs reform and because of illegitimate claimants who came in a boat just off the coast of British Columbia. As soon as the boat enters our waters, they say “We're refugees.”

Those are the actual challenges. They even come in, again talking about Mexico....

I would like Mr. Fadden to comment on whether Bill C-291 would really improve the system.