Citizenship and Immigration Committee on May 11th, 2010

[The Chair, Conservative, David Tilson]

Unfortunately, Mr. Goldberg, the chairman's a Toronto fan.

[Mitchell Goldberg]

But the Habs are the Canadians. I hope to think I speak for all of Canada now.

On a more serious note, I'm going to tell you what the Canadian Bar Association likes and does not like about Bill C-11. We support the principles of fast and fair. We think that streamlining the process is very important. We also think that an appeal on the merits is essential for fairness. The CBA has been on record about this issue for many years, advocating that section 110 of the Immigration and Refugee Protection Act be implemented. We congratulate the government on putting this in the bill.

We are also very pleased to see that there will be more resources for the refugee determination process. However, we also have serious concerns about sacrificing fairness. We do not think that you need to sacrifice fairness to have fast decisions and fast removals.

To begin with, the designated list unnecessarily politicizes the process. As Ms. Valiani said before, it has very serious consequences, in that people who are deemed to be on this designated so-called safe list would be denied this very important, very crucial appeal on the merits for life-and-death decisions.

We also, in our submissions, make suggestions to mitigate the damage this would cause. If this committee and Parliament absolutely insist on this process that we disagree with, in the alternative we think at the very least the committee that selects designated countries must be composed of human rights experts, and the criteria for establishing whether or not a country should be on that list must be completely based on human rights and state protection criteria, nothing else.

Just as we are against politicizing access to the refugee appeal division, we also oppose politicizing appointments. As you know, the Canadian Bar Association, with many other groups, has strongly opposed anything that deviates from appointments based on the merits. We think that the appointment process is still unnecessarily political right now, especially the reappointment process to the Immigration and Refugee Board.

At the very least, we think that the refugee protection division should be allowed to select the best possible candidates out there. And that means opening it up beyond the civil service. We have no problem with members being selected who are civil servants. There are many excellent members of the immigration division right now who come from the civil service, but we also should allow others who qualify to contribute their skills.

We are also very concerned about a part of this bill that I don't think has received any attention. Quite frankly it's even hard for immigration lawyers, or for anyone, to figure this out. We have struggled with understanding it. In our opinion, the bill provides for a very unbalanced, unfair, and unexplained stage implementation.

There are parts of the bill that could go into effect in up to two years after proclamation, and other parts of the bill that could be implemented immediately. We're very concerned that this could mean that the bar on applications on humanitarian grounds and pre-removal risk assessments could be implemented immediately, whereas the implementation of the long-delayed refugee appeal division could have to wait for up to two years. This would create a serious injustice for the people who are affected by this.

Like many others, we're also concerned about the delays that are not part of Bill C-11. The government has announced, as Ms. Valiani stated, that there would be an initial interview in eight days and a hearing that would be immediately scheduled 60 days later. As we said before, we are extremely concerned about the slowness of the existing process. Refugees need to have certainty. They need to have a fast decision.

Many of them are waiting to be able to bring their family members, their children, over to Canada. So of course we agree with speeding up the process. But we think that some minor adjustments can be made, such as 28 days for the initial interview and four months for the hearing. It's not a big change from what's currently being proposed, but we think it will help refugees who are very vulnerable and it will help people to be more likely to engage competent counsel.

Finally, we are concerned about the bar on temporary residence permits and also humanitarian and compassionate applications. On this last point, I'm going to talk a little about the bar on H and Cs, humanitarian grounds applications.

The humanitarian grounds applications are there for a good reason. When we argue before the United Nations whenever there's criticism of certain aspects of the system, or when there's concern about how to protect the best interests of children, for example, reference is always made by the government—the Liberal government, the Conservative government—that we have this process. It's called humanitarian grounds applications. It catches situations that fall through the cracks. It prevents injustices.

What's particularly noteworthy here is that humanitarian grounds applications do not stop removals. Unlike pre-removal risk assessments, there is no administrative bar on removals once a humanitarian grounds application is filed. On the other hand, their removal of H and Cs for refugee claimants will lead to human rights violations. I'd like to give you one example from my own law practice. There are many examples I could give, but in the interest of time I'd just like to mention a situation that's one of many.

I had these clients who were a lovely African family. There were two children and their mother and dad. The board member from the refugee protection division recognized their claim, recognized that they feared persecution and that they had gone through atrocious past persecution because of their political opinion. They were members of the opposition party. However, based on a technicality, the member refused the parents. Why? Because they had a double nationality. They were also citizens of another African country. But the children were only citizens of one country. So the member accepted the children. They were recognized as refugees, but the parents were denied.

Under what's being proposed in Bill C-11, the parents could very well be removed back to the country, while the children--and these were minor children--remained in Canada. Fortunately, they had the right to make an H and C application. They did, they were accepted, and I'm happy to say that the entire family is here together in Canada.

I can also think of many situations of women--and their children--who are victims of domestic violence by their husbands here in Canada. This has nothing to do with the Geneva Convention on refugees. It doesn't meet the refugee test, but these people are in a very vulnerable situation, and H and Cs are the only way to give them protection.

[The Chair, Conservative, David Tilson]

I'm afraid, Mr. Goldberg, that concludes the time allowed for your presentation.

Mr. Karygiannis, you have up to five minutes.

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

Thank you, Chair.

I thank you both for being present here with us today.

Mr. Goldberg, you said that you would like to see 28 days and four months. Should we also have PRRA?

[Mitchell Goldberg]

First, I should say that we understand, unlike for humanitarian grounds applications, the concern about the current system for pre-removal risk assessments, because right now it's neither fast nor fair. It does, as it's currently structured, delay removals for a long period of time, and almost nobody gets accepted.

We propose a much more efficient system that would correct mistakes, and that would be to give jurisdiction to the new refugee appeal division so that people could apply, make a written application, to reopen their case only if there are very special changed circumstances.

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

Should people be removed before an H and C has been heard?

[Mitchell Goldberg]

It does happen now. Basically--

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

That doesn't mean it's right.

[Mitchell Goldberg]

No. Basically, right now somebody could make an application to the Federal Court for a stay of removal. The Federal Court will only delay the removal if they believe the person will suffer irreparable harm.

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

Does the fact that we're going to be moving to having immigration officers making that decision not concern you? In some cases when immigration officers make a decision on something like a visitor visa, or an immigration application on which you have the right to appeal within 30 days, the decision is final. Some of our immigration officers are greatly talented people, but some of them, if they get out on the wrong side of the bed--too bad.

[Mitchell Goldberg]

We are extremely concerned about the appointment process. We think refugees and Canadians deserve to have a completely merit-based process. It's not complicated to do. Everybody knows what has to be done. You've heard this from human rights organizations. You've heard it from lawyers. You've heard it from academics. You'll be hearing more about that point, because we frankly think it's unacceptable that anyone except the most qualified decision-makers are appointed to the Immigration and Refugee Board.

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

Ms. Valiani, do you have a problem with safe third countries? Some people have come in front of us and have mentioned a couple of countries. And one of the countries that certainly stands out clearly in my mind is Turkey. They said that Turkey could be a safe country. And then you have the problem with the Kurds and you have human rights violations in Turkey that are beyond any reasonable doubt. You have the occupation of the north part of Cyprus.

Do you have a problem with our saying safe third countries? Should we treat countries as safe? Or should there be a board that sort of looks at the country so it's not left up to the immigration minister? Or should everybody have the same qualification and it doesn't matter where they apply from? Should we do away with the third countries?

[Salimah Valiani]

We should absolutely do away with the safe third country.

What we insist on for a fair process is a case-by-case determination for every claimant. The path of arrival to Canada will vary for different people, depending on their situations. And that same person will face different threats in a so-called third country.

Again, we come back to the question of what is safe, and this is--

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

Ms. Valiani, can I take you down a path that this committee has examined?

The United States, our neighbour to the south, certainly is a safe third country and will be deemed as that. Is that correct?

[Salimah Valiani]

Right, but if you have people who are persecuted on the basis of religion and racial profiling is increasing now in the U.S., for Muslims in particular as an example, is the U.S. safe for that person? It's unclear that it is.

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

But the United States has engaged in a war in Iraq that was not sanctioned by the United Nations. Some people who were born in the United States and some people who are not Muslims but are Caucasians do not want to engage in the war, and they have fled the war as they did back in the days of the Vietnam War. These people are here in Canada and they're fleeing a situation about which they say, “It goes against my religion to engage in war. It goes against what I signed on to in the war. It goes against what I thought this war was about, and for me to be sent back for a second tour, or else whatever....”

Shouldn't they be given a chance? But if we go down the scheme of Bill C-11, these people will not have the opportunity. Am I correct in this?

[Salimah Valiani]

You're correct. We agree with you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Karygiannis.

Monsieur St-Cyr, you have up to five minutes.

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

My question is for the people from the bar association. In the discussion on possible measures to limit or restrict the scope of the concept of designated countries, it was proposed that the act set out the most objective possible criteria for designating a country.

Based on your experience, can you tell us whether having such criteria in the act could result in a court's overturning the decision of the executive? Are these absolute criteria the minister would have to comply with, or would the minister ultimately determine the criteria and would there not really be any chance of appeal even though they were included in the act?

[Mitchell Goldberg]

We think that at the very least, the criteria should be included in the act, but that is not enough. There have been Federal Court decisions that gave the government fairly broad discretion to choose their... That was in connection with safe third countries, the agreement with the United States. Those decisions gave the government the choice, even though there were criteria.

That is why we believe that the committee that selects the designated countries will have to be made up solely of people who, at a minimum, have human rights expertise.

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

In passing, I want to talk about an increasingly common practice of the Conservative government. It gives bills feel-good titles that have a political slant to them instead of sticking to strictly legal aspects of the bills. This bill is called the Balanced Refugee Reform Act.

As a lawyer, would you prefer that Parliament stick to the legal aspect of legislation? Do you think it is acceptable to put bill names out there so that every time a lawyer has to refer to a law in court, he will be forced to say it is a balanced law, because that is the name of the law?

[Mitchell Goldberg]

Members of the Canadian Bar Association have come out against this sort of title, because it does not necessarily describe the law, but we have not taken an official stand.

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

Okay.

Previous witnesses talked about solutions. It was suggested that instead of having designated countries, the Canada Border Services Agency could be authorized to identify individual cases it considered questionable and to ask the IRB to process them on a priority basis. Claimants would still have the right to appeal, if need be.

Do you think this would be a fairer, more balanced measure that could replace the concept of safe countries and still protect the system?

[Mitchell Goldberg]

I cannot comment on the idea of giving the agency the power to name certain countries. We have not taken a position on that. But I can say that the Canadian Bar Association is strongly opposed—let me be clear, because we talked about criteria—to having designated countries. We believe that will create injustices.

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

Yes, but the proposal had nothing to do with countries; it had to do with individuals. If the agency thinks an individual's claim is suspicious, it asks the board, which does not have to prejudge the claim, but just process it more quickly.