Thank you. My name is Geraldine Sadoway, and Rathika Vasavithasan is with me.
I'm a staff lawyer at Parkdale Community Legal Services. It is a 40-year-old clinic in Toronto that has produced some of the major lights in immigration and refugee law. In particular, James Hathaway was once one of our students at Parkdale Community Legal Services.
Rathika is a law student, but prior to that she was involved in working with immigrant communities. She's also a representative of the Tamil community that has been displaced. Her family was part of the government-selected refugee program, but she is part of a community that includes many people who came to Canada as refugees and claimed refugee status here.
I'm representing Parkdale, but I'm also representing the many workers in the community legal clinics in Ontario and other parts of the country who work on behalf of perhaps the most vulnerable immigrants and refugees who fall through the cracks of our current system. We deal with people who are often very deeply traumatized; people who have mental health conditions; women, children, elderly people; and people who have survived torture and other types of other terrible, traumatic experiences.
Law students in our program, such as Rathika, usually come with a very rich experience working with refugees and immigrants.
We're presenting today on the changes to section 25, the humanitarian and compassionate section of the act. Those are proposed subsections 25(1.1), 25(1.2), and 25(1.3). We are arguing that they should simply be deleted from the bill. These humanitarian sections will drastically affect the communities we serve.
They propose that a person will have to choose between making a refugee claim or filing a humanitarian application. In other words, if you make a refugee claim, you're not eligible to file a humanitarian application while your refugee claim is pending, and if refused, for one year after.
Moreover, proposed subsection 25(1.3) of Bill C-11 provides that if you do make a refugee claim, it is refused, and you manage to make a humanitarian application after one year, you can't base your humanitarian application on any of the dangers or risks you raised in your refugee claim. Furthermore, this section says that no hardship or risk factors can be raised at all in humanitarian applications if those same factors could have been the basis of a refugee claim.
This is the most dramatic limitation of ministerial power we've had since at least the 1950s. That's the act I can remember having reviewed a long time ago. But certainly in the 1977 and subsequent acts, we always had ministerial discretion to consider humanitarian and compassionate grounds, and that is now going to exclude factors that could be the basis of a refugee claim.
First of all, there's no efficiency in these changes, because with the current process we consider humanitarian claims in a different stream. They are dealt with by immigration officers, not by the refugee board. There's a paper application, not an in-person application. And the processing of such a claim does not stop removal. So there's no benefit. There's no efficiency in saying we're going to get rid of the humanitarian application.
If you have a pending humanitarian claim and you've been refused refugee status, you can still be removed from Canada. I know that; as a lawyer I've dealt with those cases.
You can only stop removal if either the immigration officer agrees to defer removal or you get a Federal Court judge to recognize that you would suffer irreparable harm if you are removed. We have done that as well.
What we're doing is setting out an impossibly difficult situation for the person coming to Canada who has left a problem in their home country. It will be very difficult to advise those people.
I'd like Rathika to hold up now for the camera a little image we made, a little Venn diagram. What you have is a large grey area of what constitutes a well-founded fear of persecution, which is the test for convention refugee, and what does not meet that stringent test but does constitute very serious hardship. So getting accepted as a refugee results in much stronger protection—non-refoulement. You can't be returned to the country where you fear persecution.
Accepted refugees and their family members are granted exemptions from certain inadmissibilities, such as financial and medical. But deciding whether someone should be found to be a refugee is not black and white. It's not an issue where you're a refugee or you're not a refugee. There are difficult decisions to be made, and that grey area is where a lot of the cases would fall.
Some cases that would be accepted as refugees by one board member would not be accepted by another, but they could be accepted on humanitarian grounds. We've seen many examples of this. I've set out examples in our brief of people who even the refugee board said at the hearing that what they're facing is very severe discrimination and it's a terrible experience they've lived through, and that's not enough to find them to be a refugee, but they have a strong humanitarian case. We have taken those cases and filed a humanitarian application after the refused refugee claim and quoted from the board.
The board can't decide on a humanitarian case. They can't say, okay, but I'm going to accept you on humanitarian grounds. But the immigration officer can look at what the board saw and that they found the person credible and accept them. Now we're just going to throw that away. We're going to say that all those people who have very strong humanitarian cases will either win the refugee claim or they're gone. You can't base your humanitarian case on the very factors the board said were strong humanitarian cases.
