Citizenship and Immigration Committee on Oct. 8th, 2009

[Raoul Boulakia]

I tried to refer to this, but it is very difficult to talk about everything in a few minutes, that being the tragedy of my entire career.

I have been a lawyer for nearly 20 years, and my vocation is to defend the law. When my clients come here from outside Canada, I am ashamed to have to tell them, frankly, that whether their claim is accepted depends on the luck of the draw and on the board member. That should not be how it is. That was what I was trying to say.

People often say that they can't appeal to the Federal Court or present fresh evidence. The fact that there is no appeal tribunal also operates against the government. For example, if a person has used subterfuge at a hearing, the government could prove in Federal Court that they did not tell the truth.

I tell people that they can't appeal. A refugee appeal division would be the only appeal mechanism. As you say, an appeal division would ensure uniformity in the tribunal's decisions. Ultimately, a tribunal's decisions reflect what it wants to say and represent.

There are also other ways of creating a more effective tribunal. People have complained that some claimants come from countries where there are obviously no problems. People from Portugal have made refugee claims because a consultant firm advertised this. As a lawyer, I do legal aid work. Do you think I am going to go to another country and advertise my office? I am tired enough of trying to survive on the legal aid tariff alone. Lawyers do not advertise like that. If you don't allow consultants to appear before the tribunal, that kind of advertising is not going to happen.

There are ways of solving common problems effectively. How would a refugee appeal division operate? The decisions of an appeal tribunal are authoritative. If 500 people came from Portugal, the appeal tribunal would make a decision about that country, regardless of whether the person was telling the truth or not. It would decide that there are no problems in Portugal, because the state provides protection. The matter would be settled. There are things you can do if you understand the law.

My first duty is to defend the law and I do not like being ashamed of the thing I am serving.

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

Mr. Waldman, do you want to add anything?

[Lorne Waldman]

Forgive me for having to speak in English. I understand French but it is difficult for me to speak it.

I just want to respond to one thing. It's this whole idea of numerous appeals and things like that. This goes back to the whole idea that a failed refugee has a lot of options open to him.

It's true that we have the PRA. The reality is that the PRA is not an efficient review mechanism. The acceptance rate is, I think, about 2% or 3%. There are huge amounts of resources being expended on a process that really doesn't achieve any useful purpose at the end. That's why I repeat: you can divert those resources to the RAD and eliminate the PRA and you would have a fairer process, in my opinion.

In terms of the H and C, this is something that goes back to.... It's funny, but I had totally forgotten about this report and now Mr. Bevilacqua has reminded me. I think there is this idea that you can make 20 and 30 H and C applications, and it's true that legally you can. That's perhaps something the government might want to look at, because the reality is that for the vast majority of people, once you've made one H and C, you have your answer. Unless you really didn't present your full case, it's not likely that another officer looking at the same set of facts is going to make a different decision later. I think there are things that could be done to curtail these types of endless H and C applications.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you.

[Julie Taub]

Could I...?

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Ms. Chow.

Time was up for the question, Ms. Taub.

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

Thank you, Mr. Chairman.

So what I hear, Mr. Boulakia and Mr. Waldman, is that to have an effective, consistent refugee determination process, we need to get rid of the unscrupulous consultants, put in an appeal division, eliminate PRA and the stay at the Federal Court, and give the refugee officer the power to say yes to obvious cases through a chair directive or guidelines without legislative change, without changing IRPA and without taking it through Parliament.

Those are five clear areas, and of course there is a sixth, which is to have officers that are fully trained and permanent: if you add the resources, you can clear the backlog and stop the flow of bogus refugee claims; you would save money in the Federal Court and you would certainly eliminate the backlog.

Is this what I'm hearing, or have I missed one of the elements?

[Lorne Waldman]

Let me make a few real important points.

You don't have to change IRPA and you could achieve pretty much everything you've said. First of all, if you implement the RAD, you could, in the regulations, give the RAD the power to reopen. Let's say there was a decision. If new evidence became available or there was a passage of say a year between the decision and removal, the person would have a right to apply to the RAD in writing. It would be identical to a PRA application, right?

So you could put the regulations in place that would give RAD the power to review and reopen. The difficulty would be how you would get rid of the PRA without legislative change. You could probably do that through a regulation that would basically say that if someone's had a RAD, they wouldn't be entitled to a PRA.

[Raoul Boulakia]

I have a way you might deal with the PRA without reopening the whole parliamentary debate over IRPA. You could route the PRA and delegate the RAD. The PRA officer is a delegate, right? That's all he is. There's no law that says this office at 6080 McLeod Road in Niagara Falls is for PRA.

All you need to do is delegate. You say yes, there's still a PRA, but it's delegated to the RAD. Then what you do is you blend, because then you can only get a PRA if you have new evidence. You blend it. You go back to RAD, but only with new evidence.

There are two very small technical points you can put in. In terms of Minister Kenney's concern of people going over and over again, you could put in a time limit. You'd say either you have new evidence or this much time has passed before you can try to reopen; you can't just keep making applications.

Also, there is making the board members more permanent. On making it transparent, I know the government has made efforts to depoliticize the appointment process, and former board members keep saying that it hasn't changed. Make it more transparent. Make it better so that we end the debate over this, but make more long-term appointments. Long-term appointments create greater independence.

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

Just to be clear, let me see if I'm correct. My understanding, Mr. Waldman, is that you can be applying on humanitarian and compassionate grounds, but you still face deportation. That does not stop you. Two days ago the minister said that you can apply for H and C grounds, and on and on and on. I've seen many cases when, in the middle of applying for H and C grounds, with kids born in Canada, you still get deported. Am I correct on that?

[Lorne Waldman]

Yes. There's no doubt that the H and C doesn't stop deportation. You could do the same thing with reopenings at the RAD, as Raoul said.

The reason you need to have the power for reconsideration is that there are often long delays between the decision and the removal, and things can change. You could have, for example, a regulation that says that you can apply to reopen your case at the RAD or can apply for a PRA at the RAD, and if it's been less than a year from your decision, there's no automatic stay of removal, or something like that. There are things you could do that would prevent the type of abuse the minister is concerned about, right?

In the case of an H and C, as you said, there's no automatic stay. We can go to the Federal Court and get a stay, but the chances are very remote, and it's only in extremely unusual cases that the Federal Court will decide that it's appropriate to issue a stay. For the vast majority of people, the mere fact that you apply for the H and C doesn't delay the removal.

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

Who would be staffing the RAD, the refugee appeal division?

[Raoul Boulakia]

It would be members of the Immigration and Refugee Board. But what I would really hope is that the screening process for appointments to the refugee appeal division would give people long-term contracts and would be at the highest level of transparent public scrutiny so that we end the debate and everyone accepts that these appointments are really quality appointments, have nothing to do with politics, are clearly merit-based, and everyone accepts it, including people who've been through the process and think they got it in some way they don't respect.

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

Right now, people are interviewed and they qualify. Let's say that there are forty who qualify. Their names are put in front of the minister's office. Of the forty, the minister picks five, for example, or ten. The ten the minister picks are political appointments. It would be, “Why didn't you pick the other forty who qualified?” So that should be....

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Give him one second to answer that question.

[Raoul Boulakia]

A short list is a short list.

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

Point of order.

Ms. Chow is certainly not correctly indicating how decisions are made with respect to appointments.

[Raoul Boulakia]

Rather than commenting on the opinion, I'll just comment on a technicality.

A way to make something seem more clear is to never make a short list that gives you one out of four choices. Just make it a really short list so that it's one out of two, or something much, much shorter, so that people can't debate why he picked this one instead of that one.

The Ontario Court of Justice, the Ontario court, has an excellent appointment process. I have to say that even within that, the Attorney General does make choices, but people don't debate the choices.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you.

We'll go to Ms. Wong.

[Alice Wong, Conservative, Richmond, BC]

Thank you, Mr. Chair.

I have questions for Ms. Taub.

First of all, I really appreciate your being here. When I look at the panel, you're the only woman there. So thank you very much for doing that.

You have stated before.... I'm quoting what you said before today, actually:

Canada has the most generous refugee system in the world that has unfortunately become a parallel immigration venue for those who are not qualified to immigrate, for economic migrants, criminals, even terrorists. The need for a total overhaul of the refugee determination system is urgent to serve the best interests of genuine refugees and Canadians in general.

Why do you think the system is so attractive to non-refugees?

[Julie Taub]

It is very easy to use the system to prolong your stay in Canada; it's as simple as that. You can make a refugee claim--you can be a diplomat, an international student, or a visitor--if you don't want to go back or you can't renew your visa. These are instances of clients who have come to see me and asked, “What if I make a refugee claim? Can I stay then?” That's the reputation Canada has.

We have the highest acceptance rate, hovering around 50%, whereas the European Union averages about 12%. Is it that all the countries in the European Union are stupid, or are we so exceptionally smart that we know better? It's too easy. The acceptance rates are the highest, and it's known worldwide. We have to really reform the system. Basically some of the comments I heard were in effect about trying to reform the system.

I have to bring this back to 2002, when it was supposed to be implemented with the Immigration and Refugee Protection Act. For some reason the Liberal government said they didn't want to implement it. They had time. They could have implemented it in 2002 and they chose not to, because they felt it was another layer of appeal. So it's not just this current government that says it's another layer of appeal.

If you want to have something like the RAD, then you have to reform the entire system.

Just one correction: the Federal Court can overturn a case for patently unreasonable findings of fact. I have had a couple of cases overturned and sent back because of that.

What we're looking at today is implementing the RAD as it was conceived in 2002. We're not looking at implementing the RAD with all these changes--getting rid of the PRA, appointing different people, and improving the qualifications of board members. We're looking at 2002 as it is in the law now. That's the only thing that should be considered: add RAD and keep everything else. That is what is under consideration, not these other changes that everybody is suggesting.

[Alice Wong, Conservative, Richmond, BC]

Thank you for the correction.

Bill C-291, which we are looking at right now, appears to go in an entirely different direction to some of the things you have warned against. How do you think this would affect the flood of bogus refugees and the difficulty in removing them? We have seen so many cases here. Please comment.

[Julie Taub]

If you add RAD without making a significant overhaul of the refugee system, bogus refugee claimants can remain here indefinitely for decades.

There is the case of Mahmoud Mohammad Issa Mohammad. He is a terrorist who was given a 17-year sentence by a Greek court for an attack on an El-Al airliner in 1968. He came to Canada first as an immigrant, and then he made a refugee claim. He was refused. He was ordered deported in 1988 but he's still here. This is just one of the most outrageous examples in my paper that you have before you.

Give another layer of appeal; wait a year, as they're suggesting, from the original refugee claim; wait another year before you have an appeal before the RAD--

[Raoul Boulakia]

We didn't say that. You're just changing what I said.

[Julie Taub]

You said it would take about a year.

If the decision of the RAD is not what you want, it's still appealable to the Federal Court. You're not eliminating the Federal Court from this equation by adding a RAD. If you eliminate the Federal Court and let the refugee appeal division have the last word, that's another thing, but the Federal Court is always there at any level.

I would have more confidence in Federal Court judges than in members appointed to a RAD. Simply appoint more Federal Court judges who will deal strictly with immigration matters. And reform the refugee system.