Citizenship and Immigration Committee on May 4th, 2010

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Minister, that concludes our time with you this afternoon. I thank you for your presentation.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I'd be happy to come back at an appropriate time, perhaps at the end of your hearings, to respond to future questions, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Thank you for that offer, Mr. Minister.

This committee will suspend for a few moments.

[The Chair, Conservative, David Tilson]

We have one hour left. Well, it won't be quite an hour, because we have to deal with the subcommittee's report at perhaps a quarter after five , or something like that. I have spoken to Mr. Linklater about presentations at the outset, and unless some of you wish to say something at the outset, I think we'll jump right into questions.

Is that agreed, or did you have something to say? Maybe I'll introduce you all.

Mr. Linklater is the assistant deputy minister of strategic and program policy. With him is Peter MacDougall, director general of refugees. Mr. Luke Morton is the senior legal counsel and the manager of the refugee legal team. Jennifer Irish is the director of asylum policy program development.

Finally, Mr. Peter Hill is with the Canada Border Services Agency as the acting associate vice-president of the program branch.

We can start right into questions. I think most of you were here for the minister's presentation. Did any of you have any comments that you wished to make at the outset?

Mr. Linklater.

[Les Linklater, Assistant Deputy Minister, Strategic and Program Policy, Department of Citizenship and Immigration]

No, thank you, Mr. Chair. We're prepared to take questions from the committee.

[The Chair, Conservative, David Tilson]

Okay.

Mr. Bevilacqua has the floor.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Thank you very much, Mr. Chairman.

I want to take this opportunity to thank the department for all of its work, recognizing, first of all, that you're dealing with a very difficult issue, and, second, that there are some time constraints as well. We're always concerned about time constraints, especially when it comes to the administration of justice for people. That leads me to the very first question concerning the initial review process--the need for it to be procedurally sound and fair and that it not create unnecessary costs and delays.

It's an issue that I have already raised in the House, because if we don't get it right at the front end, these delays will in fact have the unintended consequence of creating a bottleneck, which is what we're trying to avoid.

I'd like to have your point of view on that.

[Les Linklater]

Thank you for the question, Mr. Chair.

I think the minister was correct in saying that the reforms that are being proposed here form part of a very balanced package that looks to ensure that, as Mr. Bevilacqua has said, we don't create new bottlenecks in the system, as has been the case in the last number of years. Ensuring the timeliness of decisions at the front end is critical to ensuring that those people who have a founded basis for protection from Canada are able to make their claim in a timely manner and are able to do that without being delayed unnecessarily.

As the members are probably aware, it now takes approximately 19 months for a hearing to be held at the IRB for a claimant. Under the proposed reforms, that will happen within 60 days of the triage interview, which should happen within eight days of arrival in Canada. Our view is that this should provide sufficient time for individuals to be able to provide information to IRB officials at the first instance within the eight-day triage period, as opposed to the almost 30-day period that is available now for completing the personal information form. Also, within the ensuing 60 days, there should be sufficient opportunity to engage counsel as required or if necessary and to gather additional evidence to present at the initial hearing at the refugee determination division.

With this more consistent and coherent collection of information at the front end now, we think the decision-makers at the first hearing at the refugee determination division will have better information to be able to make decisions more quickly and to speed up the processing of cases.

As the minister also mentioned, with the introduction of these streamlined approaches, there is the flexibility now to introduce a refugee appeal division, which will, within four months of a negative decision at the RPD, allow for a hearing based on the merits of the first decision. It will also allow for the introduction of new evidence, which has not been the case to date. With a negative decision there, it will allow for, with leave, appeal to the Federal Court.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

I've been concerned about the independence and the qualifications of the first-line decision-makers. What are your thoughts on that?

[Les Linklater]

I believe the question should probably be addressed more appropriately to Mr. Goodman when he appears later this week. However, I will say that we have every confidence that the public servant decision-makers who will be engaged at the refugee determination division at the IRB will have access to the information that's available to the GIC appointees who are now decision-makers. They will have access to extensive training and development to ensure that the high quality of decisions we see now from the GIC decision-makers will continue with the public servant decision-makers.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

We all want to give fair access and to respect the judicial system. We all obviously want to adhere to those fundamental values that are truly an expression of Canada's justice and legal system.

One of the concerns I have is in reference to the funding of this particular initiative--I think it's $540 million. Whenever you make such an expenditure, especially when we didn't see it in the budget, it raises concerns in many quarters. We hear about freezing departmental spending. We hear about, for example, the Canada Border Services Agency not receiving as much, and yet they're getting more money. It creates a lot of confusion in the minds of people, including parliamentarians on both sides.

I want you to comment on what kinds of safeguards we have in place to make sure that this $540 million is not part of a shell game, but rather will be directed towards the reform of this package, because we need to respect the Canadian taxpayers' dollars.

[Les Linklater]

Mr. Chair, I think this is an excellent question, and I'm happy to advise that as part of the program development process, the participating departments, with the supervision of the Treasury Board, will be engaging in a comprehensive evaluation of the impacts of the proposed changes three years after implementation. So departments that are participating in this initiative, and I believe there are seven, including Justice, CBSA, CIC, and others, will be at that time, during the course of the evaluation, reporting on the expenditures made to date--at year three of the reforms--to be able to then report publicly on the results achieved to date against the funding allocated and spent.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

For those who are viewing these hearings, for public interest, can you explain the timelines if this bill is successful and becomes law? In other words, it is now in committee. If it gets approved in the House, it will go to the Senate, but when does this actually take place? When is Canada going to have a new refugee system?

[Les Linklater]

Again, Mr. Chair, I think this is a great question, because with royal assent, there will need to be a period of implementation for CIC and IRB, CBSA, and other agencies, to prepare for the coming into force of the legislative changes and the associated regulations that will need to be developed.

As the members will appreciate, no doubt, until the bill is settled, which would mean effectively royal assent, developing the regulatory framework to support those legislative provisions can only begin in a cursory manner. So once the bill does receive royal assent, we are looking at an implementation period of anywhere from between 12 to 24 months, which will allow for the development, for example, of the regulatory regime for the IRB to develop the appropriate rules that will guide the decision-makers at the board. It will also allow for such mundane things as securing space and making sure the hiring is done and the decision-makers are trained and in place, so that when the bill does come into force there is a seamless transition from the old system to the new.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Linklater.

Monsieur St-Cyr.

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

Thank you, Mr. Chairman.

I have a few somewhat technical questions so that I can understand. In section 4 where you have created a new subsection 25(1.3), you excluded certain factors used in the determination of refugee status when you are considering a permanent residency claim on humanitarian or compassionate grounds. If I understand correctly, that would apply to all individuals claiming permanent residency on humanitarian or compassionate grounds, regardless of whether or not they have gone to the IRB with a refugee claim. Have I interpreted this correctly?

Second, do you not think there is a risk of creating the opposite effect, that is that it will encourage individuals who may have requested permanent residency on humanitarian grounds to make a refugee claim instead, given that the criteria that would have helped them obtain that residency on humanitarian grounds will be explicitly excluded under subsection 25(1.3)?

[Les Linklater]

If I understand you correctly, you are asking what the criteria are for a claim for permanent residency on humanitarian or compassionate grounds.

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

Why is the bill before us suggesting amending subsection 25(1) of the act, which deals with claims on humanitarian grounds, by adding subsection 25(1.3) in which the minister does not consider, “in examining the request of a foreign national in Canada, ...the factors that are taken into account and the determination of whether a person is a convention refugee...”?

In other words, when a claim is being processed on humanitarian grounds, any factors that could be taken into account in determining refugee status will be excluded. Why the exclusion? Do you not think there is a risk that you will get the opposite effect and encourage people who might have submitted a claim on humanitarian grounds to instead make a refugee claim?

[Les Linklater]

Thank you for the question.

Mr. Chair, this is a very complex area of immigration processing. As a result of the proposed reforms, we hope we will be able to identify the factors the member has outlined, which we refer to as “risk factors”, in the assessment of H and C applications, and to have that done as part of the refugee determination process at the RPD and/or at the RAD, as required.

Currently, our officers who do examine these H and C cases with risk are essentially being asked to look again at evidence that could have or may have been better presented at the IRB or at the RAD under the new law.

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

I'm not sure if I expressed myself badly or if I was misunderstood. The current section 25 of the Immigration and Refugee Protection Act does not deal with refugee claimants, but rather with applications for permanent resident status on humanitarian and compassionate grounds, called HC applications.

You are proposing to amend this section by adding subsection 25(1.3) under which factors used to determine refugee status when considering a claim on humanitarian grounds are not to be considered. Why is there this exclusion, not in the refugee claim process but in the process for applying for permanent residence on humanitarian grounds? Do you not think that will create the opposite effect from that which you want? Will it not encourage people who might otherwise apply for residency on humanitarian grounds to choose instead the process for claiming refugee status, because those criteria will be taken into account?

[Les Linklater]

We don't believe this new provision within the act will push people to make refugee claims as opposed to H and C requests for permanent residence. Effectively, what we're looking to do with the proposed changes is to consolidate the assessment of risk and comparable factors, along with the assessment of fear of persecution or harm, at the IRB. That is as opposed to doing it at the IRB in the first instance and then again at CIC, when our officers look at H and C considerations, such as length of time in the country.

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

Yes, but those individuals making a claim under section 25 will not necessarily have been rejected by the IRB nor will they have necessarily gone through the process of applying for refugee status. They may be immigrants who live here or students who have been here on a temporary basis. Furthermore, if they have failed at the IRB level, then they will no longer be able to apply.

Therefore this isn't a linear process but rather a parallel process. Why were those criteria removed from the process?

[Les Linklater]

Those individuals whose claims were not rejected will always have access to a risk assessment before leaving Canada. We have something called in English the PRRA which ensures that all risk factors are reviewed in the cases of individuals who have not had an opportunity to present their case and its risks before the IRB.

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

You have not convinced me that this subsection is relevant but I will ask another question.

In section 25 again, paragraph 25(1.2)(c) states that a claim cannot be made on humanitarian grounds after a claim for asylum has been rejected, withdrawn or abandoned. Several individuals told us that this restriction should not apply to those who decide to withdraw their application before a hearing has begun. Why did you not take that suggestion into account? What would be the consequences if this committee decided to amend that provision in order to allow an individual to make a claim on humanitarian grounds if that individual withdraws their asylum claim before their hearing begins?

[Les Linklater]

Thank you for the question.

Essentially, what we're looking at with this change is to ensure that individuals who have a fear of persecution or risk are channelled appropriately and go to the IRB. There may be cases, as has been pointed out, when people decide, before they have a hearing at the IRB, that they should likely have requested humanitarian and compassionate consideration. That is not foreseen in the act at this time. However, if an amendment were moved, the government would have to consider that and determine whether it was acceptable in the context of the broader reform package.