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.