Citizenship and Immigration Committee on May 11th, 2010

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thank you, Chair.

Mr. Bissett, could you please tell us what's wrong with the current system, and why is it vulnerable to abuse?

[James Bissett]

I think it leads to abuse because it's wide open. That is to say, we're one of the few countries in the world that allows anyone, from any country in the world, to come and claim that they're persecuted and then let them have an opportunity to enter before a quasi-judicial tribunal and go through all these various steps.

In 2002, for example, we had citizens of 152 different countries make refugee claims in Canada. Now, that's ridiculous. We had people from Switzerland, from Germany, from the United States coming here and making claims. This is what clogs the system up, and this is why we have to have a system that says, look, if you're coming from the United States or from England, you will be heard, and you'll have an opportunity of explaining why you think you're persecuted, but we're not going to give you the full process, because it's taking too long and it costs too much money. In addition to that, however, if you feel that the decision at the first level is not proper, hasn't treated you fairly, you can seek leave to appeal to the Federal Court. If they think you've got a case, they'll hear you out.

To me, that's about the only system that's going to work. It took a long time for the European Community to realize that they were being overwhelmed by asylum-seekers. As I mentioned, in Germany they get 493,000 in one year; they had to change their constitution. The European Community got the first onslaught of asylum-seekers. They finally resolved it by coming in with a system that said, look, if you're coming from safe countries that are signatories to the UN convention, that are democratic, that follow the rule of law, that don't normally persecute people, then we'll hear you, but it will be a fast hearing; it will be a summary hearing, a triage, so that we can save our time for the ones who are coming from countries where we know that people are persecuted and mistreated.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

So you think that the safe country of origin policy will help deter abuse. Do you think it will also help address the spikes in unfounded claims?

[James Bissett]

Of course it will. I'm sure it will; yes, absolutely.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

How does the safe country of origin policy compare to visas as a tool to address spikes in claimants?

[James Bissett]

It will depend on how the minister decides to handle that. It could be done by giving a list, saying that any of the countries of the European Union are safe, or it could be done by not listing any country, except when you do get a problem, like the Czech Republic, or Mexico, or Brazil, or Turkey. As in the past, we've had to put visas on almost 100 countries because we were being flooded by claimants. It started out with India, as a matter of fact, and we finally had to put a visa on Indian nationals.

In addition to that, we've had to put visas on Brazil, on Turkey, on Portugal, and on many countries when the international smugglers and lawyers found out that anybody could come and started encouraging these people to do so. They would say, look, why wait in the backlog at immigration, where 900,000 people are waiting? Come and make a claim. Why wait? You'll be here for two or three years before your claim is even heard. In the meantime, you're allowed to work or get welfare, with free medical, and when you appear before the board, you get free legal advice.

I mean, the system is designed to pull in people who want to get here. I'm not blaming people for trying, but it's a system that's unworkable unless reform is instituted. I have very serious doubts that this proposal goes far enough.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

I'll give the rest of my time to--

[The Chair, Conservative, David Tilson]

No, I'm afraid there's no more time. I'm sorry.

Our time has come to an end. We thank you all for your....

You have a point of order, Monsieur Coderre.

[Denis Coderre, Liberal, Bourassa, QC]

I will say it in French.

I understand why my colleague, Mr. Dykstra, asked Ms. Dench a question earlier, but I felt that he did not go about it in a very nice way.

I want us to understand each other. I have met with the Canadian Council for Refugees. We have had meetings where the conversation was robust, but it was consultation. It was not to sign a paper saying that what was discussed would be kept secret.

Mr. Chair, I do not feel that the witness was very well treated here. She cannot reply fully, because she signed a non-disclosure agreement about that meeting. I would like you to give me some clarification. Not only is a witness being put on the spot, but I do not call that consultation—and we have not always agreed. I feel that a witness has been put in a very delicate position today.

[The Chair, Conservative, David Tilson]

Monsieur Coderre, it's a point, but I don't think it's a point of order. Thank you for your intervention.

Do you have a point of order, Monsieur?

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

I agree with Mr. Coderre. That said, I also know that Mr. Karygiannis has a point of order. I think we should deal with them at the end of our meeting this evening, when only we are left, because we have another panel to hear in 45 minutes. If members start raising points of order, there will not be much time left for people.

[Denis Coderre, Liberal, Bourassa, QC]

It is just that Ms. Dench—

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

I think Ms. Dench knows we support her. We can talk seriously about this with Mr. Dykstra this evening.

[The Chair, Conservative, David Tilson]

I agree with you, but I have to recognize a point of order.

We are out of time. If you want to take away from the next presenters for the next 45 minutes, Mr. Karygiannis, I'll recognize you. And I will recognize you.

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

Thank you, Chair.

Chair, I think the way we're treating our witnesses—having four an hour, giving them seven minutes, and herding them through—is unfair to them. We're herding them like cattle. I think we need to change that, because....

Chair, let me finish.

What we're doing here is changing people's lives. Certainly, on a point of order, I think that after we come back from the break, we need to re-examine the four panels, as well as to make sure that people who have put their name forward do not get an e-mail from the clerk that says, “This is going to be brought forward to the committee members”, because that has not been brought forward to the committee members.

If that's a way of hiding for the chair, it's totally unacceptable.

[The Chair, Conservative, David Tilson]

Mr. Karygiannis, that's not a point of order either; it's a point.

The process has been set by this committee. If the committee wishes to change the process, we can hold another meeting at another time that won't interrupt these proceedings to change the process, if that's what the committee wishes.

At this particular point in time, I'd like to thank you all for coming.

I know that the Canadian Council for Refugees has given us a written presentation, which we thank them for. If the other three presenters wish to make a more elaborate presentation in writing, we would be pleased to receive that as well.

Thank you all for coming.

I will suspend for a couple of minutes to set up the next hearing.

Thank you.

[The Chair, Conservative, David Tilson]

Ladies and gentlemen, I would like to call the second session to order.

This committee will end at 5:15, because we will have to go to vote. So we'll have to judge ourselves accordingly. Instead of each caucus getting seven minutes, it will get five minutes, or we'll never finish.

I'm going to start with another witness from Toronto, who is from the Metro Toronto Chinese and Southeast Asian Legal Clinic.

I hope I don't mess up your name too much: Salimah Valiani.

Was that close?

[Salimah Valiani, Coordinator, Colour of Poverty, Metro Toronto Chinese and Southeast Asian Legal Clinic]

You almost had it.

[The Chair, Conservative, David Tilson]

And you're the coordinator of Colour of Poverty.

You have up to 10 minutes, ma'am, to make a presentation to the committee. Thank you for coming.

[Salimah Valiani]

Thanks very much.

We really appreciate the opportunity to give a deputation regarding Bill C-11, on the changes to the refugee determination system.

I work at the Metro Toronto Chinese and Southeast Asian Legal Clinic. We are a clinic that serves about 3,000 clients a year. Immigration law figures at the top of the types of files we open.

We offer legal services in Cantonese, Mandarin, Vietnamese, Khmer, and Laotian .

I would like to make points around four areas of the reform. First of all, we are very enthusiastic that there is a proposal to implement a refugee appeal division. Errors inevitably occur in the first instance, and an appeal on merits is necessary to correct errors.

We would urge that a merit-based selection process for the refugee appeal division members be laid out such that political appointments are avoided and high-quality decision-making becomes the basis for selection for the refugee appeal division.

Second is the area of humanitarian and compassionate consideration. Humanitarian and compassionate grounds are a necessary recourse to consider human rights issues including, for example, the best interests of the child. The distinction between what is a well-founded fear of persecution, which is the convention refugee definition, and very serious hardship, which is the test for a humanitarian and compassionate grounds application, is not black and white but instead grey.

One Immigration and Refugee Board member may accept a claimant as a refugee based on the same facts upon which another board member may refuse the claimant. How then are we to advise a client to choose between making one type of application and the other?

We have many cases of people from China who are accepted under humanitarian and compassionate consideration after being refused under the refugee definition--for example, people arriving for fear of persecution under the one-child policy.

Humanitarian and compassionate consideration is a safety net for those not qualifying as refugees but still facing disproportionate hardship if returned home.

The new system would likely drive such clients underground for a year or more as they wait to make an application on humanitarian and compassionate grounds. This would be detrimental to both clients and the system as a whole, and would waste precious time during which people in need of a safe home in Canada could instead begin the settlement process.

The third area I would like to touch on is the question of an interview after eight days in Canada and a hearing after 60 days. Most of our clients obtain legal aid certificates in order to be accompanied by a lawyer through the refugee application process. It is completely unfeasible to expect that these certificates could be obtained within the first eight days of arrival in Canada.

Claimants then without legal aid would have to represent themselves or become subject to representation by unregulated consultants who are often very unreliable.

Our clients additionally have language barriers, and it would be virtually impossible to arrange language interpretation services within eight days of arrival. If interpretation is inadequate, then the stories of claimants' risk become distorted, and that prevents a fair process.

In cases from China we have made claims on behalf of minors arriving in Canada unaccompanied. These are often complex cases involving trafficking and the sex trade. Such cases are on the rise. In the month of April, the McCarthy Tétrault Unaccompanied Minors Project received its 100th client.

Given the experiences of fear and trauma involved, we again doubt that effective interviews could be carried out within the first eight days of arrival in Canada. In many cases, 60 days to gather evidence for claims--that is, to prepare affidavits, translate documents, and obtain expert reports--will also be too little time.

In addition to adequate time to prepare for interviews and hearings, we need accountability measures to assure that the rights of unaccompanied minors and other claimants who have faced trauma or torture are protected in the system.

Finally, I have a point on the safe countries designation. The use of safe country lists politicizes the refugee system, and this thereby defies the very principles of refugee protection.

Refugee determination requires individual assessment on a case-by-case basis in order to guarantee fairness. Fairness will be denied to claimants from countries designated as safe, based on the Canadian government's subjective judgment of the socio-political situations in their countries. There are no objective or quantifiable criteria by which to determine countries as safe, and patterns of human rights change very quickly in countries.

This is likely the reason why the bill does not contain a definition of safe countries, which again underlines the political nature of labelling countries as safe and then denying full rights, especially the right of appeal, to claimants from those countries.

Those are the major points we would like to make. The emphasis on a fair process for all claimants comes back to the fact that if a fair assessment is not made, these are people who risk death and injury if they are returned home. So we would urge the committee to take these points into consideration, and would like to submit our brief in writing.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you very much for your presentation.

Our second guests are from the Canadian Bar Association. Mitchell Goldberg is an executive member of the citizenship and immigration law section. Kerri Froc is a staff lawyer on law reform and equality.

Welcome to you both. You have up to 10 minutes for the two of you to make your presentation.

Thank you for coming.

[Kerri Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association]

Thank you, Mr. Chair.

The Canadian Bar Association is very pleased to appear before this committee today on Bill C-11, the Balanced Refugee Reform Act.

The Canadian Bar Association is a national voluntary association with about 37,000 members across the country. The citizenship and immigration law section comprises about 1,000 lawyers, with expertise in all areas of citizenship, immigration, and refugee law. The primary objectives of the organization are improvements in the law and in the administration of justice. It is through this optic that we make our comments here today.

For the purposes of our appearance today we have circulated to you the executive summary of our larger submission. We'll also be providing the larger submission to you in due course.

I'm going to ask Mr. Mitchell Goldberg, who is an executive member of the citizenship and immigration law section, to make substantive comments about the bill.

[Mitchell Goldberg, Executive Member, Citizenship and Immigration Law Section, Canadian Bar Association]

Thank you very much.

I first should say that I'm a Montrealer. I figured that, as a Montrealer, with the Habs doing so well, it gives me a little bit more credibility.

I'm sure the Montrealers in the room would agree with me here.

[Voices]

Oh, oh!

[Mitchell Goldberg]

I might be on shaky ground with some of you.