Evidence of meeting #15 for Citizenship and Immigration in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was claim.
A recording is available from Parliament.
6:55 p.m.
Professor, Human Rights Research and Education Centre, University of Ottawa, As an Individual
If it's done well, I'd have to say the public service. Yes, if it's done well, the public service.
6:55 p.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Okay. Thank you.
The other question I have is could you explain how an assisted voluntary returns program would increase the number of voluntary removals? Has the AVR concept been successfully tried in other countries?
6:55 p.m.
Professor, Human Rights Research and Education Centre, University of Ottawa, As an Individual
Yes, it has. It was actually successfully tried here in Canada in 2000 and 2001 through a pilot project in Toronto. As for how it works is, it's a smart use of money.
Frequently, refugee claimants are refused who actually thought they were refugees. They're not all phony claimants. They realize they're not, and they're actually prepared to accept the return.
In the pilot project in Toronto, there was a 65% uptake in acceptance of the ones who were offered it. It's actually fabulous. It's much better than any removal process that takes place now. It makes sense.
The one warning is on this notion that the $2,000 goes to some type of agency over there to dole out. Please don't muck that up with the Department of Immigration. Don't turn it into another bureaucratic boondoggle. You need to get the money to them quickly so that it actually works.
6:55 p.m.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Thank you.
I'll turn the rest of my time over to Mr. Calandra.
6:55 p.m.
Conservative
Paul Calandra Conservative Oak Ridges—Markham, ON
Thanks for giving me the opportunity to keep talking.
If I'm wrong, just correct me. You said that it would be ludicrous to remove risk from the H and C analysis. I know the RPD considers risk of persecution. The appeal would also consider risk. I'm just wondering why it is, then, that we would need a third consideration of risk by a CIC official.
6:55 p.m.
Professor, Human Rights Research and Education Centre, University of Ottawa, As an Individual
There are different forms of harm and risk, but they're not separate. They overlap. For example, there are kinds of persecution called cumulative persecution, which is made up of several different smaller kinds of harm that would all clearly come within H and C. They are separate streams. I'm not questioning that they be separate streams, but if you're assessing the hardship, which is what you're trying to assess under H and C, I'm questioning that you would exclude anything that could look or sound like persecution. You're trying to take one big ball and carve it into two categories, and that's not how it works. It's really mixed together very much. That's why.
6:55 p.m.
Immigration Lawyer, As an Individual
Further to what Peter said, the reality is that in cases involving refugee claims, what constitutes legitimate persecution and what doesn't is often very subjective. If you make a nice little silo, you could say that you have to make it within the refugee claim. But the refugee decision-maker could say that really isn't persecution, it's really something else, and it should be decided within the context of the H and C.
We have many cases where people go forward with genuine refugee claims. Their stories are believed, but the refugee board member says that it's just not quite persecution, it's something else. That's why having these nice, neat silos just doesn't work.
7 p.m.
Conservative
Paul Calandra Conservative Oak Ridges—Markham, ON
Mr. Waldman, let me ask you a question. Again, correct me if I'm wrong, but you seem to be saying that removing pending H and C claimants is actually in the law and it's appropriate. I'm wondering if you would support the proactive removal of asylum claimants who withdrew their claims at the IRB and had an H and C pending, if that was an option.
7 p.m.
Immigration Lawyer, As an Individual
So you're asking if I would support the possibility that persons could be removed pending an H and C? I would say that, generally speaking, the policy is that they will be removed. There is always the possibility in exceptional cases for a person to go to court and seek a stay.
In my experience, of every ten people who come into my office and ask me to seek a stay, I will only seek it in perhaps one case, and even then I will only be successful one in three. The likelihood of getting a stay is very small, but I don't think you should remove that discretion where there could be an exceptional case, where some exceptional matter arises that warrants not deporting the person while the H and C is decided.
I would say as a general policy it should be that if there's something wrong with it, that's the current policy that we've had for many years.
7 p.m.
Conservative
The Chair Conservative David Tilson
That's it, Mr. Calandra. Thank you very much.
Mr. Waldman, Mr. Boulakia, and Professor Showler, you've given excellent presentations, and we do appreciate your coming here this evening. Thank you again.
7 p.m.
Professor, Human Rights Research and Education Centre, University of Ottawa, As an Individual
May I add that I have provided a brief to the committee? It's simply delayed until the translation is completed. Unfortunately, our translator at the University of Ottawa was on two weeks vacation.
7 p.m.
Conservative
7:05 p.m.
Conservative
The Chair Conservative David Tilson
Good evening, ladies and gentlemen.
We have with us three groups. From the Centre des femmes immigrantes de Montréal we have Vanessa Taylor, co-chair. From the Refugee Lawyers Association of Ontario we have Andrew Brouwer, the chair of the law reform committee. From Toronto by video conference we have the Folk Arts Council of St. Catharines Multicultural Centre, Salvatore Sorrento, chair, and Ibrahim Abu-Zinid.
Each group has up to seven minutes to make a presentation. We'll start with Ms. Taylor.
Good evening to you, Ms. Taylor.
7:05 p.m.
Vanessa Taylor Co-Chair, Centre des femmes immigrantes de Montréal
Good evening.
I would like to start by saying that the Immigrant Women's Centre of Montreal applauds the present government's efforts to amend the refugee determination process. We understand its priorities in making the asylum system more efficient.
I agree with the minister that a near-58% refusal rate of asylum seekers over the last two years is wasteful, and an average waiting period of 19 months before first hearing is unacceptable. It is therefore vital to encourage the institution of a system that increases Canada's refugee acceptance rate, while significantly reducing delays.
However, it is our position that this reform should not be carried out at the expense of fairness. More specifically, it must not favour what some people might refer to as bona fide refugees--like those who are presently in UN camps, for example--over asylum seekers who may seem more suspicious and opportunistic.
We should not be privileging refugees overseas solely on the basis of a perception that they can more easily be processed and can better prove their claims of persecution to be well founded. If we sacrifice the lives of asylum seekers, who would otherwise become accepted refugees, by making it more difficult for them to adequately present their cases, it might prove to be more economical, but the cost would still be too high.
After careful review of Bill C-11 we find that certain of the proposed changes would especially handicap those seeking asylum from gender-based persecution.
I would like to express my concern about the following two proposed amendments. They are subclause 11(2), replacing subsection 100(4); and proposed subsection 161(1), making a preliminary interview mandatory within eight days of being referred to the Immigration and Refugee Board, followed by a subsequent hearing no more than 60 days following that interview. The other one is clause 12, adding a new subsection 109(1) designating countries of origin. Citizens would not be eligible for an appeal at the RAD.
Women, in their country, may suffer specific types of violence related to the fact that they are women, despite an appearance of democracy in those countries. Spousal abuse, trafficking in women and young girls, sexual mutilation, degrading widowhood rites, forced marriage, crimes of honour, sexual orientation and the maintenance of women in the state of minors are a few examples of that.
An obligation for these women to submit to time restrictions, with regard to an interview in the 8 days following the filing of an application for asylum and the first hearing within 60 days following that interview, as proposed in subsection 11(2) of the bill, could place serious constraints in view of the content of the experience of these women.
As some members of Parliament have already pointed out, for a woman who, for example, has been the victim of sexual violence committed by figures of authority and for whom it is impossible, in her country of origin, to even talk about that situation, it will be much more difficult to speak frankly about her experience to an official, particularly since she may not have had enough time to obtain good legal advice.
We understand that, if the official in question finds that the applicant needs more time to prepare psychologically for the interview and hearing, it would be possible to extend the time periods. However, how do you ensure that that official can in fact come to that conclusion if the woman in question has no one to defend it? Can we count on that official being able to read her thoughts? We don't think so.
That's why we strongly suggest to the authors of the bill, first, that they clarify the utility of this interview before introducing it, more specifically with regard to the record of personal information which, we believe, already serves the purpose that such an interview might have.
Second, if the justifications prove valid, we emphasize that the time period granted is sufficient to obtain the assistance of a legal counsellor.
Lastly, the creation of a list of designated countries, in our view, could result in discrimination against women. A list of these designated countries, from which some women seeking asylum come, would have the consequence of denying them access to appeal or a fair and independent hearing that would completely take into account injustices committed on the basis of their gender.
A possible solution to this problem would be to clearly establish the regulations regarding rigorous criteria for selection of designated countries, which would take into consideration the situation of women in those countries.
However, to ensure that our refugee determination system is fair for all, we ask that subsection 109(1) be repealed. This does not mean we aren't sensitive to the problem of countries that generate a high percentage of asylum refusals, but that we believe instead that the necessary time must be taken to propose an alternative solution that wouldn't cause harm to a given group.
Women asylum seekers often have no other possibility than to leave their country and to seek protection at the port of entry. We are seeking refugee status for women who are persecuted because they are women and because we are opposed to the twofold violence of an application processing system that would discriminate against women. That, in our view, would be a violation of the Canadian Charter of Rights and Freedoms and of the Geneva Convention.
Women who file a valid claim based on gender and individuals who file a claim based on sexual orientation and sexual identity will be major victims of this bill—
7:10 p.m.
Conservative
7:10 p.m.
Co-Chair, Centre des femmes immigrantes de Montréal
Yes, it's the last paragraph.
7:10 p.m.
Conservative
7:10 p.m.
Co-Chair, Centre des femmes immigrantes de Montréal
Women who make a gender-based claim and individuals who file a claim based on sexual orientation or identity will be the major victims of this bill, particularly since it would prohibit access for asylum claimants to humanitarian considerations and to risk assessment before removal for a period of 12 months following the inadmissibility of the claim. Prohibiting this recourse will only increase the number of women whose lives will be in danger when they return to their country of origin.
7:10 p.m.
Conservative
The Chair Conservative David Tilson
Thank you very much.
Mr. Brouwer, welcome to the committee. You may make some comments, please.
7:10 p.m.
Andrew Brouwer Chair, Law Reform Committee, Refugee Lawyers Association of Ontario
Thank you for this opportunity to address some of the concerns of the Refugee Lawyers Association of Ontario.
We are a voluntary association of about 200 refugee lawyers who practise solely or primarily in the area of refugee law. As refugee lawyers, we have a number of very serious concerns about this bill. We have laid these out in a written brief. It's about 35 pages, and I don't know whether it's been circulated yet. We provided it to Mr. Chaplin last week.
7:10 p.m.
Chair, Law Reform Committee, Refugee Lawyers Association of Ontario
Excellent.
Given the limited time available, I've decided to focus my comments today on the very specific issue of that initial eight-day interview, in part because I believe it won't be addressed all that much by some of the other advocates or in the discussion of some of the other issues, including H and C applications and the safe country of origin list that are also of grave concern to us. But hopefully we can get into those issues during our discussion.
As you know, the government is proposing to replace the current written statement, the personal information form, or PIF—which is drafted with the assistance, normally, of counsel over the course of 28 days—with an interview before an IRB official eight days after referral by the Canada Border Services Agency, or CBSA.
Counsel, as I understand it, will be excluded. Whether or not they are actively excluded by law or regulation, practically speaking, they will be excluded, because as others have mentioned, finding a lawyer, developing a relationship with a lawyer, getting legal aid, and then appearing before the IRB within eight days is just not going to happen—and I speak from experience on that.
In our submission, the eight-day interview is neither workable—and I'll explain why—nor fair; nor, would I say, is it consistent with the charter.
Currently, refugee claimants set out in the PIF the basis of their refugee claim, as well as details of their background, their family, where they've worked, and where they've lived over the past ten years. In our experience, the process of developing the narrative portion of their refugee claim, that is, the PIF, is a very difficult and painstaking task. It's really getting someone to open up about what are sometimes the most difficult experiences they've ever had in their lives.
Usually, in order to develop a decent PIF, you need to develop a careful relationship of trust with your client. In my experience, we sit down two or three times, and maybe four times, with the client over the course of the 28 days to develop the relationship, to explain to them that what they tell us stays in the room and that what they tell the board will not go back to their country of origin, and to help them trust us enough to tell us about some of the very taboo experiences they've sometimes suffered.
Under the bill, this process of developing this relationship and setting out these details will be done by an officer eight days after the refugee's arrival. In our submission, given the kinds of information that need to be presented at that time, it's simply not practical. You cannot reasonably expect a refugee who's just arrived, having faced some of the most traumatic experiences we can imagine, to appear before an officer of another government in another language in a foreign country and talk, in any kind of detail, about what they've just gone through. I say this both because of the issue of the difficulty of talking about those issues, and also because of the misconception of many people that when you tell a government, any government, about what happened to you back home, it could well get back to your own government or to the people back home.
In our submission, at least two possible things could happen if we do go ahead and implement this eight-day interview in place of the PIF. One is that where we have a responsible IRB official taking the story down, they'll realize that they can't get the whole story down in one meeting, so there will be an adjournment and then another adjournment as they gradually try to build up the trust that counsel normally needs to do.
In my submission, what we'll see very quickly is a backlog of claims at this very first stage. So instead of what is a reasonably efficient 28-day process, we're going to have backlogs accumulating before that initial officer—which will ultimately delay the process rather than speeding it up, as is the intention of the minister.
The alternative, of course, is that we have officers at the IRB who don't have that same degree of training or commitment to spend the time to get the story, and what we'll get is a cursory interview or an aggressive interview where only some of the information about the refugee claim is actually presented. That, then, will be presented at the refugee hearing. If by that time the person has retained counsel and developed a relationship of trust and told their story, they will finally go to the hearing and tell the whole story. The contradictions between the sparse information given at that first interview and the detailed information given finally at the hearing, with counsel, will be used against them. They'll be found to be elaborating and lying about their stories and they will be refused on that basis.
Neither of those options, either the backlog or a set-up for failure, is an acceptable way to run refugee claims, in our submission.
So from our perspective, this initial interview should be struck. It's inappropriate. There may be other ways, if the board wants to conduct an interview with the claimant, to get some basic information--that's fine, but not the merits of the claim.
Very briefly, I'll just touch on the three other issues, if I may. I have two sentences on each.
One issue is with respect to the safe country of origin list. I would just ask the committee not to be lulled by the idea of objective criteria in the act. It's the position of our association that simply implementing some criteria about what “safe” means is not actually going to protect this law from the equality and charter challenges that we will bring, nor will it fundamentally allow the minister to be constrained by clear criteria.
The second issue is the H and C restriction. Others have talked about it. I hope we'll get some questions on it. Again, eliminating what has been a fundamental aspect of Canadian immigration law for decades is inappropriate.
And finally, with respect to the PRRA restriction, getting rid of access to a pre-removal risk assessment for a year following a final refusal at the board is not consistent with the charter and is not consistent with international law. If it gets passed, it won't last for long.
Thank you.
7:20 p.m.
Conservative
The Chair Conservative David Tilson
Thank you, sir.
Mr. Sorrento, you may have time to speak to the committee.
May 11th, 2010 / 7:20 p.m.
Salvatore Sorrento Chair, Folk Arts Council of St. Catharines Multicultural Centre
Thank you, Mr. Chair.
Good evening to you, everyone. Thank you for the opportunity to be able to present.
And my apologies to you, sir, and to the committee for not having a brief for all of you. I would like to proceed, with your permission.
7:20 p.m.
Conservative
The Chair Conservative David Tilson
Of course, sir. If you wish to present us with something in writing at a later date, you're quite welcome to do that.