Citizenship and Immigration Committee on Oct. 20th, 2009

[Francisco Rico-Martinez]

Yes, and the discussion that NGOs and civil society had when we were discussing the Immigration and Refugee Protection Act, and the commitment we received from the Minister of Immigration at the time when we were putting together the Immigration and Refugee Protection Act...she was going to implement the appeal division, and they reduced two members of the IRB to one. Under the criteria, there will be a safeguard mechanism that is going to review the decisions of that member, the only member who is going to see the cases. Therefore, I think I support totally the implementation of the appeal division, because it's not only fair, it's part of the Immigration and Refugee Protection Act, and it's about time. Different ministers have just overseen this situation.

I totally agree with your analysis in terms of the lack of consistency and different things that have happened at the Immigration and Refugee Board, which make stronger the argument for an appeal division at this particular moment.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Ms. Chow.

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

Mr. Rico, regarding your friend from Mexico, her husband died, was killed in Mexico, her daughter was kidnapped and raped, and then she came to Canada. The case for her entire family, including her daughter, was rejected. They were deported back to Mexico. Subsequently, in Mexico her daughter was kidnapped, killed, and her body dumped on the street. This is in Mexico. So Mexico, in your mind, is not necessarily always safe for some people.

Are you surprised if I give you two statistics? Number one, Canada last year accepted 21,860 refugees, the lowest number since 2000. So we have a drop in the cases of refugee claimants' acceptance in Canada. Number two is the refugee board: the independent audit found that the majority of the appointees—in fact, 61% of them—were appointed without merit or without fulfilling some kind of guiding principles and guidelines of fairness or transparency, etc. So under that kind of situation, is it surprising that this system at this point has failed your friend and her family, and how would the appeal division assist in your specific case where the family was deported?

[Francisco Rico-Martinez]

What I was trying to say when I presented the case to the committee, and I maybe failed to do that, is that this case is an example of the lack of recourse that a rejected refugee claimant has under the Immigration and Refugee Protection Act. It's clear in this case that if we had an appeal division that analyzed the case on its merits and reviewed the case itself, it would have concluded differently. But the judicial revision system doesn't meet the standards for an appeal division.

The other thing is that we also don't have mechanisms to correct mistakes we make in the system when we send poor people back to their countries and these people have further problems or further risk. In the case of the family from Mexico, we have to think outside the box. We have to call the management team in Ottawa and the embassy to make an application for a temporary resident permit. That doesn't apply itself to this situation, but they understood the risk and they understood the mistakes the system made in this case and they brought it back. This case is a good example to prove the lack of recourse.

We have other recourses that you have to analyze. You are moving in the right direction with the appeal division, but we need to talk as well about an immigration ombudsman who is going to take complaints and make immigration officers everywhere accountable to the procedures and to the morality of this country. We don't have that mechanism yet. That's why the whole situation must be.... Now that we are not changing anything else yet, now that we are dealing within a points system that is lacking in terms of the selection of the best members for the IRB, one mechanism to safeguard decisions and to save lives is to implement the appeal division of the Immigration and Refugee Protection Act.

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

Do you agree that for the refugee board all appointments should be done according to merit and according to clear guiding principles, instead of partisan considerations, and that they shouldn't be through an order in council? They should not be appointed by the minister's office, because clearly the audit said that if 33 out of 54 appointments were not made based on merit, or failed the guiding values, then there is something wrong that one board member would decide on the fate of the family, like the one you are talking about. That board member would have life and death—in this case, death—on his hands.

So it's critically important that there is an appeal process.

[Francisco Rico-Martinez]

As far as I know, all of the experience of refugee law agrees that we don't have a good system to appoint or to screen or to select board members. Everybody, even the Conservative Party, agrees that we have to improve the system. The difference is, or the problems are, how they believe it is to be improved.

The last modification the Conservatives did to the selection of board members, when they basically reduced the independence of the committee that nominates the board members, goes in the opposite direction and creates more problems in terms of the political influence of the party in government to decide on the members of the IRB, which is totally wrong. We have to go in the opposite direction. We have to create a full technical review of the board members and select based only on the merits and experience they have in deciding these cases. We will have a wonderful institution that is run with fewer problems in terms of the decisions they make, and it will be less influenced by the political estates of the minister of immigration at any moment--for example, using the bogus claims from Mexico. The political appointee of the IRB is deciding at this particular moment that all of the cases from Mexico are bogus, and therefore the rate of acceptance for Mexican cases, even though the country conditions are totally different, is going down every single day.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Rico and Ms. Chow.

Mr. Calandra, you're next.

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

Thank you, Mr. Chair.

I'm thinking about the witnesses. Mr. Collacott, you obviously have a great deal of experience and you've obviously maintained a fairly decent knowledge of the system and everything that has been going on. You've been hearing a lot of testimony, obviously, with respect to this.

I'm trying to wrap my head around a number of issues. I want to go down one avenue with you. You've said in your statement that we have one of the most generous systems in the world for both legitimate refugee claimants and those who are not.

I actually want to talk about the economic refugee claimants, because they are treated much the same way as those who we really want to encourage to come to Canada and we want to protect. Much of the time, the economic immigrants are doing it to jump the queue as such. In your remarks, you started to go down the road of explaining some of the difficulties with our current system. I wonder if you might continue in that vein and tell me how you think the current system actually attracts the bogus refugee claimant as well as the real claimant.

[Martin Collacott]

Thank you for the question. Largely, because we have such a generous system--we approved last year, for instance, a little over 51% of the claims that were finalized. Other countries average about 15%. No one comes close to our numbers.

I'd like to get back to the question Mr. Rico-Martinez was asked: Who decides these cases? Who are the members of the board? The point has been made that they should be completely independent of government policy. The fact is, other countries use professional civil servants who are specially trained in immigration law and human rights to make the initial decisions. Then you get more consistency. And then you have a good review system, with an appeal. So these things go together. But right now, we have a system where anyone from any country can make a claim.

The system where we had two board members ruling on a claim actually slanted the playing field in favour of the claimant, because if only one approved, that was enough. If the other disapproved of the claim, the claim went through. Then there was another aspect that if a claim was refused, there had to be a report written; it didn't have to be written if it was approved, only if it was rejected. As a result, the playing field was heavily slanted in favour of the claimant. Now it's not. Therefore, I think there's ample evidence that many of the people who we do approve, compared with what other countries approve, do not have a good case. If you have a good case, you're going to make your claim overseas. We take more than 10,000 people a year from overseas. That's where we should be getting most of our people, not those who are making claims in Canada. Some may be genuine, but by international standards most are not.

If we were being balanced and fair and humanitarian, we would give more money to help refugees in camps. We give about $3 or $4 a year to each of the 10 million or so refugees in camps. We spend $10,000 a year on claimants here, who by international standards are mostly not real refugees. I think our system is badly out of whack. There's a whole industry formed around processing people who make claims in Canada. There's no industry formed around helping immigrants in camps overseas, or helping select those. We have some commitment to helping those who are overseas, but that's where we should be putting our money and our efforts, selecting people overseas, helping people in camps.

We should adopt international standards on safe third countries and safe countries of origin, like other countries do. The numbers making claims would be much lower. We could process their claims more fairly, I think with public servants, which was what was recommended in the government-commissioned “Immigration Legislative Review”, and then we should have a good appeal system that could include something like the IRB. But you must clean up the present mess first or you'll simply make things worse.

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

That's a theme that we've been hearing a lot, actually. Two weeks ago, when we were also hearing witnesses on this matter, witness after witness was telling us that the system needs to be modified or changed, that bringing in an appeals division on its own would potentially make the system even worse, and I know our minister is considering bringing forward some changes very soon.

Let me ask you bluntly: what impact do you think bringing this legislation forward right now, on its own, would have on making Canada even more attractive to the economic refugee claimant?

[Martin Collacott]

I think it would have that impact. One of the attractions of the system now is that even if you're turned down, you can keep appealing and having reviews. Somebody estimated that implementing the RAD would add another five months to the system. So I can see why immigration lawyers would love it--another chance for them to intervene in the process.

I think it's abundantly clear it will only make the matter worse. Once again, I think there is need for a provision for a substantive review of the merits of the case. There's a lot already done in that area, even though not officially, through the Federal Court reviews of cases. But unless you're going to look at the thing as a whole, let's not make it worse before we make it better.

[The Chair, Conservative, David Tilson]

That's it.

We have about five minutes left. The first hand I see gets it.

Go ahead, sir.

[Andrew Kania, Liberal, Brampton West, ON]

Mr. Collacott, a quote I took from you in terms of one of the reasons why you're opposed to this is you said that refugees have an “endless series of appeals”. I want to review that with you.

At present there's the refugee protection division, which makes these decisions, correct? And you'll agree with me that there actually is no formal appeal from that at present, correct?

[Martin Collacott]

Not as part of the IRB, but you have the pre-removal risk—you have a series of appeals that are available to a refused claim.

[Andrew Kania, Liberal, Brampton West, ON]

No, no, this is technical.

[Martin Collacott]

All right. Technically, within the IRB, yes.

[Andrew Kania, Liberal, Brampton West, ON]

There's no actual appeal right now at all from the refugee protection division, correct?

[Martin Collacott]

Not within that division, no.

[Andrew Kania, Liberal, Brampton West, ON]

Right. So if somebody wants to try to actually appeal, they have to file an application for leave to appeal to get judicial review from the Federal Court, correct?

[Martin Collacott]

They can do that, yes.

[Andrew Kania, Liberal, Brampton West, ON]

Right. And you'll agree with me that they have very limited grounds for where they actually would grant judicial review.

[Martin Collacott]

Technically, yes.

[Andrew Kania, Liberal, Brampton West, ON]

Right. So it's a very small percentage of cases that actually would have the benefits of judicial review at all, correct?

[Martin Collacott]

Yes. May I comment on that?

This is partly because we've already approved in the IRB a much higher percentage than any other country in the world. I think we've probably gathered in most of the legitimate cases, so not many do get reversed by the Federal Court.

[Andrew Kania, Liberal, Brampton West, ON]

But one of the reasons for that is because when the Federal Court examines it, first, they don't have the power to reverse it. They can only send it back for hearing, correct?