Citizenship and Immigration Committee on Oct. 20th, 2009

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

In Sri Lanka, for example, you can say that between 1982 and 1986, hostilities on both sides were rising; today in Sri Lanka we have people who were arrested during the civil war last year. There are reports that people were executed. So the situation is very fluid and it changes daily, which goes to the point that I also want to ask you, sir. That is, somebody comes to Canada and claims refugee status from a particular country because they fear for their life; they fear persecution because they've got different political views. When this person comes here...by the time the hearing starts and by the time the hearing finishes, if they have the right to appeal, it might take two or three years, and sometimes even longer. From that time, sir, the situation in that country changes daily, so a decision that is made today for somebody in Sri Lanka, to the time they're removed two years from now...things change. These people should have the right to appeal.

When you apply for Canada pension disability benefits, when you apply for EI, when you apply for anything else in Canada, if the first level refuses you, you have the right to appeal. Why should you or anybody else in this room refuse these people the same right to appeal as other Canadians are enjoying? Is it because they're not Canadians that they shouldn't have the right to appeal?

[Martin Collacott]

I do have some problems about whether non-Canadians should have all the same rights as Canadians. The fact is that I, and everyone else--

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

Oh, I'm sorry. Did you say “Canadians and non-Canadians”? Are you saying that immigrants are not Canadians, or people who want to be prospective immigrants do not have the right--

[Martin Collacott]

No, I didn't say that, sir. I didn't say anything about immigrants. I said people who are not Canadians, people who simply come here and claim refugee status--sometimes criminals, sometimes terrorists--who simply say, “I have exactly the same rights as Canadians”. I know under the Singh decision of 1985, before the Supreme Court, they were given a lot of the same opportunities to present their case. I guess we won't get into that issue. I think that was a mistake. If someone is not a landed immigrant and they simply arrive here and say they want to be a Canadian, I'm not convinced they should have exactly the same legal rights as a Canadian citizen or even a permanent resident.

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

Think about this, sir. I came to this country seeking refugee status, and a few years later I'm a member of Parliament. According to you, sir, I shouldn't have the same rights.

[Martin Collacott]

You do now--

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

No further questions, Chair. I will pass my time to Ms. Mendes.

[Martin Collacott]

Sorry, I disagree--

[The Chair, Conservative, David Tilson]

Sorry, sir?

[Martin Collacott]

Well...that's all for the moment.

[The Chair, Conservative, David Tilson]

Okay.

Ms. Mendes.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Thank you, Chair.

I would just like to ask that if in terms of our obligations as signatories of the Geneva convention we should not be offering these rights to every single person who knocks on our door and asks for refugee status. I'm not saying there aren't people who are abusing the system; there probably are. We do have obligations as signatories of the Geneva convention.

[Martin Collacott]

Absolutely, and I think that's perfectly clear. I think refugee claimants should be given a fair hearing if they are genuine refugees, and they should have some provision for appeal. What I'm saying is the current situation needs a lot of improvement and changes. To implement the RAD at this point without clearing up the other problems would be very unwise. This is my point.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Perhaps it would be unwise, but something has to be done, and done quickly. The problem right now is that the system may need improvements, but we're not doing anything. This is one sector of the law that touches human lives, lives that could be put into danger if they are returned to their country.

[Martin Collacott]

Surely we already have by far the most generous system to begin with. We have the highest acceptance rates in the world. I'm not sure what the rush is to make it even higher before we look at some of the fundamental problems.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

I'm done.

[The Chair, Conservative, David Tilson]

Okay.

We'll move to Mr. St-Cyr.

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

Thank you, Mr. Chair.

My comments are also directed at Mr. Collacott.

Something you said at the end of your presentation surprised me a little—indeed, it was a pleasant surprise—although it seems to contradict all of your other arguments.

You criticized the lack of consistency applied to the determination of refugee status cases, and rightfully so. There were clear cases, such as that of two Palestinian brothers who applied for refugee status on the same grounds but who received different outcomes from different board members. In addition, there are board members with an acceptance rate of nearly 100%, while the rate of others is close to 0%. This shows the total lack of consistency between decisions. You agree since you mentioned it in your presentation.

Do you not think that these facts alone justify creating an appeal tribunal, in order to ensure that decisions are consistent, and to monitor and control the work of board members in the court of first instance? That way, they could no longer render decisions where the claimant had no further recourse. They will eventually have to deal with the appeals. If, too often, their decisions are overturned, people will start to ask questions. Establishing a body of case law is the goal of any appeal tribunal. And none exists today.

Do you not think that justifies creating an appeals division for refugees?

[Martin Collacott]

I repeat what I said earlier, Mr. St-Cyr: none of us object to having some kind of substantive appeal. The question is whether you introduce yet another layer before you clear up the other mess. I think the inconsistencies of the decision you mentioned point to another problem: why are there such massive inconsistencies?

There has been some discussion of whether we should have a different system for appointing board members. I think we should. You'll get some inconsistencies, but the inconsistencies are just massive. The Auditor General, for instance, pointed out that—

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

I will stop you there because we agree on that.

There are inconsistencies simply because we do not have a body of case law that has been approved by a higher court. Refugee claimants in Canada do not have the option of appealing a decision on the merits.

On February 10, I made the following comment to the minister when he appeared before the committee: “[...] the Refugee Board is the only tribunal in the Canadian justice system that does not provide for appeals on the merits. Am I correct in saying it is not possible to appeal on the merits?” The Honourable Jason Kenny answered: “Technically, you're correct, Mr. St-Cyr [...]”.

On that front, we can look at government documents dating back to December 1997. They explain that the judicial review system is too restrictive when it comes to refugee decisions because of the requirement to obtain authorization before filing an appeal. We have already talked about that. There is no possibility of appealing. Even very qualified board members can have different opinions, and without a higher court to rule on the matter, there is no consistency. That is a clear fact, and it is true for any system.

I want to point out that the appeals division gives not only unsuccessful claimants the option of appealing, but also the minister. You mentioned the case of the Czech Republic and the fact that board members were accepting claims from that country. If an appeals division existed, the minister could appeal those decisions. Currently, there is no appeals division, and that gives rise to nonsensical decisions.

For example, when board member Laurier Thibault was assessing cases, he turned down 98% of applications. Mr. Collacott, imagine finding yourself before a judge one day—which could happen to anyone at this table, even a law-abiding citizen—and you learn that that judge convicts 98% of the individuals who appear before him. Would you feel that justice would be served?

[Martin Collacott]

Again, you've underlined just how badly the system works, and I'll repeat what I said earlier: yes, let's do have a substantive appeal, but let's not just pile that on top of the endless series of appeals we have now. We have people here who've been avoiding removal for 20 years: Mahmoud Mohammad Issa Mohammad was mentioned last time.

There are so many different appeals and reviews, so there's no question why three Liberal ministers refused to implement this RAD.

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

I will continue with Mr. Rico.

I appreciate that you agree that there should be a possibility of appeal. The lawyers who appeared at our last meeting pointed out that there were a number of ways to improve the system without making legislative amendments. Furthermore, everyone agrees that it needs to work well. But it seems to me that adding the appeal recourse is a fundamental point.

Mr. Rico, I want to delve a bit further. The bill before us today aims to bring into force legislation that already exists. When the Immigration and Refugee Protection Act was enacted, we went from two board members to one. The addition of an appeals division for refugees was supposed to balance that out.

Do you think that the first part of the amendment should be passed, that is, going from two board members to one, without passing the second part, namely, adding an appeals division?

[The Chair, Conservative, David Tilson]

You have 30 seconds, Monsieur St-Cyr.

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

More fundamentally, should we not respect acts of Parliament first and, if they do not work, amend them later, rather than never implementing legislation that was passed?

[The Chair, Conservative, David Tilson]

Mr. Rico.