Citizenship and Immigration Committee on May 11th, 2010

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen.

This is the Standing Committee on Citizenship and Immigration, meeting 14, Tuesday, May 11, 2010. The orders of the day, pursuant to the order of reference of Thursday, April 29, 2010, are to consider Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.

For the first hour, we have a number of witnesses, a number of guests.

From the Canadian Council for Refugees, we have Wanda Yamamoto and Judy Dench...or not “Judy” Dench--I'm thinking about somebody else, sorry about that--but Janet Dench, executive director.

From Amnesty International, we have Claudette Cardinal, who is the coordinator of refugees, Canadian francophone section; and Mike Bossin, the chair of the anglophone section.

Good afternoon to all of you.

Our fourth guest is not present, but I'm going to assume he will be soon.

Each of you has up to seven minutes to make a presentation.

We will start with the Canadian Council for Refugees, and I trust that one of you will speak.

[Wanda Yamamoto, President, Canadian Council for Refugees]

Thank you.

We welcome the opportunity to address you on this important bill that will profoundly affect refugees seeking Canada's protection. We have submitted a detailed brief of our comments on Bill C-11 and recommendations for changes.

Unfortunately, we will not have time today to discuss our concerns more than superficially. The speed with which the committee is rushing through the study of this bill undermines any capacity to have the thoughtful review that is merited. We remind you that you are dealing with a complex process that, if done wrong, can and quite likely will result in people being sent back to persecution and even death.

Unlike most proposed reforms to the immigration legislation, the government in this case chose not to consult externally. Our expectation was that members of Parliament would therefore recognize the particular need for a thorough study. We have been hearing strong expressions of shock and disillusionment from our members when they realize how rushed your hearings are.

Turning to the objectives of refugee reform, we believe they are clear and widely shared. We need a system that recognizes refugees quickly and discourages people who don't need protection from entering the system, or deals with their claims efficiently if they do enter it. Bill C-11 contains some positive elements, but also several serious faults that would put refugees, particularly the most vulnerable, at risk of being deported to persecution. Some provisions would also make the system more inefficient. A number of provisions would likely lead to a great deal of litigation.

On the positive side, Bill C-11 offers most claimants access to the refugee appeal division. An appeal on the merits is long overdue and absolutely necessary to ensure that mistakes are not made. We are also painfully conscious of the very long delays currently faced by refugee claimants waiting for determination, and we support the goal of speeding up access to a hearing.

On the negative side, the introduction of the safe or designated countries of origin is, in our view, a serious mistake. We sympathize with the objective of addressing patterns of unfounded claims, but we believe this is the wrong solution. If adopted, it will lead to injustice for refugees in need of protection. It may also cause unintended practical problems that will undermine the goal of efficiency.

Treating claimants differently based on nationality is wrong because it is discriminatory. Refugee determination requires individual assessment of each case, not judgments on countries.

The idea of safe countries of origin is drawn from Europe, where it has been extremely controversial. Many serious problems with refugee determination in Europe recently led to the adoption of the Council of Europe's resolution on improving the quality and consistency of asylum decisions, in which the parliamentary assembly, in Resolution 1695, called on member states to refrain from using lists of safe countries of origin

to ensure that each asylum case is examined individually with rigorous scrutiny of the particular situation of each applicant with respect to the country in question.

Under the proposed bill, nationals of designated countries would be denied access to an appeal on merits. They would also face a bias against them even at the first level, since decision-makers would be aware of the government's judgment on the country. None of this would matter if we could be sure that no individuals of designated countries would be refugees in need of protection. However, experience teaches us that, on the contrary, there are likely to be refugees among those affected.

There are few, if any, countries in the world that are completely safe. In countries that generally appear to be safe, women often nevertheless suffer serious gender-based persecution, and there are grave abuses against gays and lesbians.

The minister has said that his intention is to use these provisions to target claimant groups where there are concerns about abuse of the system. Yet if we look at the experience of recent years, we generally find that there are individuals within the groups who do very much need protection, even if most do not.

Take the Mexican claimants. They have come to Canada for economic reasons, but a significant number have fled for their lives. There are serious and widespread human rights abuses occurring in Mexico. In 2009, 516 Mexicans were accepted as refugees by the Immigration and Refugee Board. Denial of a fair process to these claimants may lead to their forced return to persecution, in violation of human rights law.

Depriving these claimants of an appeal is shortsighted if the goal is to have a smooth-running system. Often these claimants are among those who most need an appeal due to difficult issues of fact and law, such as the availability of state protection. This is the case, for example, with claims from Mexico where the Federal Court has repeatedly overturned decisions of the Immigration and Refugee Board because of a failure to apply appropriately the test of state protection.

The advantage of an appeal-level decision is that it could set a precedent for future decisions, allowing better and more consistent decision-making. It is possible that excluding claimants from the appeal may in fact be more expensive and time-consuming than granting them access to an appeal, since the Federal Court is likely to feel the need to scrutinize more closely the cases of claimants denied an appeal.

We note that there have been suggestions here that the legislation include criteria for designated countries. In our view, this would be more window dressing that would in no way redeem a fundamental flaw in the proposal.

I will pass it on to Janet now.

[The Chair, Conservative, David Tilson]

She has one minute.

[Janet Dench, Executive Director, Canadian Council for Refugees]

The CCR believes there are more effective ways to address the real problems of patterns of unfounded claims. The principal problem in addressing these claims lies not with the refugee determination system, but rather with the lack of coherent enforcement action. Such claimants are often quickly refused but then wait months, or even years, to be called in for removal proceedings.

Instead of introducing designated countries of origin, the CCR recommends that the act give authority to the Minister of Public Safety to identify a limited number of claims—say 5%—that the IRB would be required to hear on a priority basis. This might help CBSA to be more coherent in its analysis of which cases should be a priority for enforcement action.

Had there been more time, we would have wished to present to you our concerns with the eight-day interview and excessively rushed hearings, and with dramatic restrictions on humanitarian and compassionate applications.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Dench.

Next we have Claudette Cardinal and Michael Bossin from Amnesty International.

One of you will be speaking, or perhaps both.

[Claudette Cardinal, Coordinator, Refugees, Canadian Francophone Section, Amnesty International]

Good afternoon. We want to thank the Standing Committee on Citizenship and Immigration for giving us the opportunity to share our concerns about Bill C-11, which is very important to people seeking asylum in Canada. We have only one presentation, but Mr. Bossin will speak on behalf of the Canadian Anglophone Section of Amnesty International and I will speak on behalf of the Canadian Francophone Section.

Our joint document will be submitted to you in a few days. Today, we want to talk about two points we are particularly concerned about: the designation of safe countries of origin and the rush to hear refugee claimants.

Under Bill C-11, a refugee claimant would be interviewed eight days after arriving, and the hearing would be held 60 days later.

We agree that refugee claimants currently wait too long for a hearing and a decision. But speed should not be the overriding concern in the amended act. What is needed is an equitable process, and we are afraid that speeding up the process, which is what Bill C-11 would do, will lead to incorrect negative decisions that could violate Canada's international obligations and put refugee claimants' lives at risk.

Under the current system, refugee claimants have the time to complete the personal information form including their narrative, information on their education and work experience, the names of their family members, previous places of residence and so on. Even more importantly, claimants will have the time to prepare a detailed account of why they are claiming refugee status, with the help of a competent legal advisor who knows the law and what constitutes evidence.

Often, claimants have to obtain medical, legal, police and other documents from their country of origin and have them authenticated. They must also have those documents translated here. Sometimes they have to find an expert witness. All that takes time. In addition, a very human factor has to be taken into account, and that is that claimants who have suffered rape, sexual abuse or torture will not feel comfortable confiding in a stranger they just met, if they are lucky enough to find an advisor quickly. Disorientation is another factor that has to be taken into consideration. Someone who has been here for just eight days and does not speak the language may not understand much. And more often than not, that person also needs an interpreter.

In addition to the short time frame, we are concerned that the bill does not clearly describe the purpose of this initial interview. Is it for information gathering only, or is it a substantive interview? And the parameters of the second interview—the hearing—are not set out in legislation, but in the regulations or even just in internal procedural rules.

Our concerns about the initial interviews apply to the hearing as well. Our concerns are set out in more detail in the document that is to come. We have three recommendations on this point: do away with the initial interview as described in the bill; keep the personal information form or change it to make it simpler; add the case to the IRB schedule when the person is ready to proceed or within six months of the case referral.

Now, Mr. Bossin will share his concerns about designating safe countries of origin.

[The Chair, Conservative, David Tilson]

You have three minutes, sir.

[Michael Bossin, Chair, Anglophone Section, Amnesty International]

I want to suggest an analogy that's appropriate to the designated country list. Imagine a neighbourhood where there's a lot of crime, where studies have been done that show that 95% of everyone from this neighbourhood who is charged with a criminal offence is convicted. So the government decides to address this issue, and it brings in a law that says that people from this neighbourhood who are convicted of a crime won't have an appeal. They'll have their trial, they'll have their day in court, but if they lose, there's no appeal. That will reduce crime, it will discourage people from that neighbourhood from committing crimes, and it will unclog the appeal courts, because these people will no longer have an appeal.

On the surface it sounds pretty good, but I would suspect that no one on this committee would ever vote in favour of a bill like that. Why? Because it's discriminatory. Because it's unfair. Because it treats people differently based not on what they've done, but on where they come from.

We all know that under that system, even if 99 out of 100 people from that neighbourhood are going to be found guilty, one day an innocent person is going to come before the court and be found guilty, will go to jail, won't have an appeal, and an injustice will have been done. For that reason alone, I would suggest that kind of law is unjust.

Bill C-11 follows the very same logic, yet we are seriously considering passing this into law. Bill C-11 creates a two-tiered system for refugees, those who come from the countries with the good reputation and those who come from the countries with the bad reputation, and they are not treated the same. They are not treated differently because of what they did, they're treated differently because of the national country of origin--where they come from.

Of course, they still get a judicial review, but I would suggest that if a judicial review were an appropriate remedy, this government would not be proposing implementing the refugee appeal division for most claimants.

Amnesty International is in the business of monitoring and reporting on human rights abuses. Every year, people would like us to come up with a top 10 list of worst countries. I think if we did that, we'd be very popular and we'd probably raise a lot more money than we do now, but we don't do that. In our brief, we set out a number of good reasons why to do so is simply an unreliable method of determining which country is safe and which country is not safe. To do so would be irresponsible and unreliable.

Amnesty International is all for improving our refugee determination system.

Like all of the NGOs who are appearing before you today, we would happily work together with this committee and with this government to make that happen. But we are not all for making things worse.

We strongly urge this committee to take a deep breath, to consider the implications of this bill, and to reject what is unfair, discriminatory, and ill-considered. Take as much time as it takes to get it right.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Bossin.

Our third guest is James Bissett, who is a former Canadian ambassador and a former executive director of the Canadian Immigration Service.

Good afternoon, sir. You have up to seven minutes to make a presentation.

[James Bissett, Former Ambassador, Former Executive Director, Canadian Immigration Service, As an Individual]

Thank you, Mr. Chairman.

Apart from my fellow panellists, I think it's generally recognized that our current asylum system is seriously flawed and has lost public confidence. Its key weakness is it cannot distinguish between those who genuinely need our protection and those who use it to gain entry by avoiding having to meet immigration rules.

It has other serious flaws. It's terribly expensive, it's exploited by human traffickers and smugglers, it interferes with our tourism and trade, and it damages our bilateral relations with a number of countries. It also inhibits our ability to contribute to helping the United Nations High Commissioner for Refugees to resolve the enormous global refugee and displaced people problems that confront the world.

There are estimated to be close to 42 million people under the aegis of the United Nations High Commissioner for Refugees. These are people who are in camps; 16 million of them are defined as refugees, and 26 million others are uprooted people who are under the responsibility of the UNHCR.

Canada used to be the leader in helping resolve world refugee problems, but now we've lost our leadership role by continuing to tolerate a dysfunctional system. We're also in danger of retaliation by the European Union if we continue to demand visitor visas for some of their nationals. The European Union has put us on notice that if we don't fix the system, Canadians will need tourist visas to go to Europe.

Asylum shopping by people who abuse the system is not unique to Canada. In the last 25 years, approximately 10 million asylum claims have been made in western countries; 800,000 of those have been made in Canada. Less than 20% of those who have made claims have been found to be genuine refugees, and the costs have been staggering: 400,000 asylum seekers each year in western countries costs an estimated $10 billion U.S. When you compare that to the annual budget of the UNHCR to look after some 40 million people, their budget is about $4.5 billion, so this consistent attempt to try to sort out the genuine refugees from the economic migrants is very costly.

Every attempt at reform in Canada has been met with fierce resistance by immigration lawyers, immigration consultants, and refugee activists. The challenge of any system is to design a program that works and sorts out the bogus claims before they can clog up the system. We cannot afford any longer to waste scarce financial resources on those who exploit the system, as they have been doing for years. The proposed legislation is a step forward. It attempts to balance fairness with the reality that asylum claimants coming from countries that respect the UN convention and the rule of law and are democratic do not warrant the same level of scrutiny as do those coming directly from countries known to persecute individuals.

In effect, it's a triage system, a fast-track system. It's practised in all of the European Union countries and it's sanctioned by the UNHCR. The proposal is an attempt to reform a broken system that has proven to be unworkable and damaging not only to Canada, but to the interests of genuine refugees. It deserves the support of this committee.

As I see it, there is a risk here that the change proposed in this legislation may be too little and too late. The key is whether the first level of decision-making can be made fast enough to make the system function effectively. If the first level doesn't work, the new system will be as bad as the current one, if not worse.

We are now faced with an enormous backlog of undecided claims, somewhere in the neighbourhood of 62,000 undecided claims waiting here. The costs of that are just staggering. The department has said it's $50,000 per refugee per year. Just do the figuring.

The work of this committee is going to go on for some time and the legislation may not be passed, if it is passed, for many months. In the meantime, human traffickers and smugglers know that the law is going to be tightened up, and I would suspect that we'll get a very high rush of individuals trying to get here before that deadline.

I think, and I hope, that this committee takes their responsibilities seriously here and makes this first rather timid step for reforming a system that has been broken for years.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Bissett, for your presentation.

Our fourth witness, here via video conference, is in Toronto. She is with the Ontario Council of Agencies Serving Immigrants. Her name is Amy Casipullai. She is the coordinator of policy and public education.

Good afternoon to you. You have up to seven minutes.

[Amy Casipullai, Coordinator, Policy and Public Education, Ontario Council of Agencies Serving Immigrants (OCASI)]

Good afternoon.

The Ontario Council of Agencies Serving Immigrants, OCASI, thanks you for this opportunity to speak to you on this very important bill. I will unfortunately not be able to share with you in detail all of our concerns with the bill in the time that I have been given, pretty much like the other witnesses. I will therefore focus on some of the areas that are of greatest concern to our member agencies. We will be sending you a written submission on this shortly.

Bill C-11 is an important piece of legislation that would significantly change Canada's refugee protection system and have a profound effect on refugees. It deserves careful study and thoughtful consideration by this committee. Canadians deserve the time to be heard on this very important issue. One of our biggest concerns is the speed at which this bill is being pushed through the parliamentary process, and even through the committee process.

One of the things that refugees and immigrants arriving in Canada learn very quickly is the extent to which Canadian residents are allowed, and even encouraged, to have a say in the decision-making process of various levels of government. One of the things many have said they appreciate is being able to appear before a committee such as this, and many have appeared before you over the years to share their experience and have a voice in the discussion on important laws that would affect them and would affect future residents of Canada. We call this “civic engagement”, and it's something that we and all levels of government have actively promoted.

The process for Bill C-11 unfortunately is going to be one where there is little or no consultation and where there is little or no opportunity for those actually working with refugees to have a say.

OCASI is the umbrella organization for immigrant- and refugee-serving agencies in Ontario. Our member agencies include those that work with refugees who have experienced torture, that work with those from Mexico, Hungary, and other countries who arrive here seeking Canada's protection and file a refugee claim. They include organizations such as the Canadian Centre for Victims of Torture, recognized worldwide for their work with torture survivors; organizations such as the Roma Community Centre, which has worked for years with Roma refugees from Hungary and other countries; and organizations such as the FCJ Refugee Centre and many others that work with those who arrive from Mexico and other countries, seeking protection in Canada.

Our member organizations are working on the front lines with those who would be profoundly affected by the changes proposed in this bill. They can tell you first-hand how those changes would affect their clients. Unlike other opportunities, when important changes to Canada's immigration and refugee protection laws are before you for consideration, they will not have the opportunity to appear before you to share their experience.

On behalf of these member agencies and others, OCASI would like to tell you that it's not too late to take the time to hear from these organizations and others that work with refugees who would be deeply affected. As the standing committee, you're one of the critical components of our parliamentary system, intended to give community organizations and ordinary people a chance to be heard on very important concerns in a way that is fair and transparent.

In regard to the bill, we welcome the minister's stated intent to introduce a reform that is fast and fair. We welcome the creation, at last, of a refugee appeal division. We welcome the spirit in which it is introduced, the recognition that refugees, too, deserve a fair appeal process. The possibility of introducing new evidence is made available with what's proposed in this bill. Unfortunately, the appeal would not be available to all claimants from those countries designated by the minister as safe countries.

The Canadian Council for Refugees and Amnesty International have shared with you some of their concerns with regard to the proposed safe country list, and OCASI echoes those concerns.

We are particularly concerned about the potential impact on those who are seeking protection because of persecution on the basis of gender or sexual orientation, and who may be from other countries that are potentially deemed safe by the minister but who are still genuinely at risk. We are concerned that this process would become highly politicized and would then have an impact on refugees, with possibly tragic consequences.

We welcome the minister's proposal to speed up the process for those waiting to have their claims resolved. That's a good thing. Our member agencies can speak to the effect on individuals having to wait for years to have their claims resolved, and the impact of that wait. Therefore, we agree that it is a good idea to speed up the process, but our concern is that fairness could be sacrificed for speed.

Many claimants come from a system or a background where they may be unfamiliar with our refugee hearing process. They may be in circumstances where they are still terrified, in shock, likely not ready to share with a complete stranger the details of why they need protection. Many may not be able to recall the details, may not be able to put what happened to them together in a coherent way.

The point is that each circumstance would be unique and would deserve full and fair consideration of the merits, and we fear that the fast process would not allow that to happen.

Perhaps there may be some claimants who would be ready for an initial hearing within eight days, but there would definitely be some who wouldn't. Are we going to bring a bill, a one-size-fits-all system, when lives are at stake? Would it not be better to err on the side of fairness so that each person seeking protection has a fair chance to tell her story or his story?

Our second concern with this is that the decision-maker at the first hearing would be a civil servant rather than someone appointed by cabinet. The problem is that civil servants would lack the independence that is required.

Assigning the refugee determination to civil servants is fundamentally problematic because they don't have independence, but limiting the appointments to civil servants would also exclude some of the most highly qualified potential decision-makers from a different range of backgrounds who would be able to bring their perspectives to the decision-making process, and this would affect the quality of decisions.

This is something that we have drawn from the materials prepared by the Canadian Council for Refugees, of which OCASI is also a member. There is much more that we could say, but again, the limitation is time.

Unfortunately, Bill C-11will do nothing to address the current delays and backlog that's already in the system, presumably the reason it's being introduced. It will only deal with the claims filed in the future. Therefore, while we welcome the minister's proposal to address some of these major concerns, we would like to suggest that the problem with the current system is that it's starved of resources. So we welcome the minister's suggestion that he bring more resources to the new system that is proposed to make it work better. What we would like to know is why would you not do the same for the system that is currently in process?

We ask you as a committee to consider investing those resources in the current system while you take the time to study what is proposed with Bill C-11, to give refugees a fair chance.

[The Chair, Conservative, David Tilson]

Thank you very much.

Thank you all for your presentations.

Committee members will now have some questions.

We will begin with Mr. Bevilacqua.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

I'm going to let Mr. Coderre ask his questions.

[The Chair, Conservative, David Tilson]

Mr. Coderre has the floor.

[Denis Coderre, Liberal, Bourassa, QC]

Thank you, Mr. Chair.

I have to say that I feel we are moving very quickly for such an important bill, especially given the questions that are being raised today. I think we are going to have to reconsider everything.

I am very familiar with the Canadian Council for Refugees, Amnesty International and Mr. Bissett, especially. I would like to use my time to go into some things in more depth.

This is a fairly important bill, but parts of it are unacceptable, in my opinion. One of our values as Canadians is that we recognize that every case is unique. I think it is totally unacceptable to decree that someone cannot be considered a refugee because he comes from a certain country.

Ms. Dench, Ms. Yamamoto, I would like to give you some time to tell me what you think. We agree, but we are looking at this in terms of procedure. I myself was in St. John's, Newfoundland and Labrador, when I suspended the right of appeal, but we had good reasons for doing so.

From an administrative standpoint, are you happy to have a team of civil servants in charge of the first hearing and then to have an appeal? Do you have any objections, even though there will be a right to appeal on the merits?

[Janet Dench]

Nationals of designated countries will not have a right of appeal. We are very concerned about having civil servants handle the first level, because they will have sole decision-making authority in these cases.

[Denis Coderre, Liberal, Bourassa, QC]

What would you say if there were no designated countries?

[Janet Dench]

We have certain reservations and concerns about the fact that these are civil servants. We are also not happy with the current system, because of partisanship. The government has to find another solution. We have concerns about civil servants' independence and about recruitment.

The important thing is to find the best candidates, whether they come from inside or outside the public service. We would like to see amendments that would guarantee a high degree of independence and an openness to the best candidates, whether or not they are from the public service.

[Denis Coderre, Liberal, Bourassa, QC]

Okay.

Mr. Bissett, you're a former executive director. We've known each other for a while.

Do you think it's fair that we put in place a system where we say, “Well, because you're coming from that country, you cannot apply as a refugee”?

Are there ways to say, “Well, there are some exceptions, and the fact that you have some issues with gay people...?” We've been witnessing in Mexico, for example, some of those situations.

Don't you think we could say, “Okay, let's work on the process”, and provide...?

I agree with you that the timeframe is disgusting--we need to shorten it--but do we truly have to say, “Okay, we should designate some countries and say that you're because you're coming from Japan, well, forget about it”?

[James Bissett]

Well, we don't forget about it. In the system that is designed now, the initial level of decision-making will be done by a public servant, it's true. As a former public servant, I don't really see anything wrong with that. They will be able to sort out, one would hope, the ones who deserve to go on to the next level. It's possible for someone to go on. In addition to that, remember, they all have the right to seek leave to the Federal Court.

The problem, if you give everybody an appeal, is that you're never going to resolve the system, because you can't have any kind of quasi-judicial body that has levels of appeal that can handle volume. We're getting 30,000 to 40,000 asylum seekers every year. We just can't handle that.

There has to be a fast-track system, as every other country in Europe has found out. I mean, the Germans, in 1993, ended up with 493,000 asylum seekers. They had to change their constitution to try to speed the system up. Now they're using the system that we are now going to adopt.

[Denis Coderre, Liberal, Bourassa, QC]

In my book, because I've been in that job, I believe every case is specific. That's a start.

[James Bissett]

Yes. I agree with that too.

[Denis Coderre, Liberal, Bourassa, QC]

If we settle the issue of the process—remember, we were fighting together against immigration consultants and all those issues—and if we have the proper process and have that kind of appeal by merit, we can do what France does. Their own IRB is an appeal board.

I don't have any problem having a special department that will be well trained to address any issue regarding refugee claims, and if we're not satisfied with the result allows for an appeal. If it's a “yes, but” instead of a “no, but”, I think we can fast-track.

The problem is that if we put more processing in the field, the lawyers or immigration consultants might be happy, but if we reduce and make sure that the process is working according to the timeframe and the process, why would we need to have some designated countries?

[James Bissett]

I think you need designated countries to try to ensure that the system fundamentally works quickly.

Look at the Czech Republic. They're very upset that their citizens need tourist visas to come to Canada. They have a problem with Roma, as do most eastern European countries, but the Czech Republic has human rights laws just as generous as ours. They're democratic; they follow the rule of law. They have a problem with Roma people, who are discriminated against, but the Roma people don't have to come to Canada to get refuge. They can travel to any one of the European countries. There are 27 European countries; the Roma are free to go about their business there.