Citizenship and Immigration Committee on May 11th, 2010

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

Mr. Brouwer, the other thing we have is the third country, a country that is deemed to be safe. Is there such a thing? Indeed, there are some countries that are safer than others. I always go back to the case of the draft dodgers in the 1960s, and the same situation right now with people who want to flee the United States because they don't agree with the war, and they want to come up here. Is there such a thing in your mind that says yes, indeed, there are 10, 20, 30, 40 different safe countries, or is this something for which there should be a panel that says people applying from those countries are indeed safe? I can talk about my home country, the country I was born in, and it's part of the EU, but indeed I can pick and choose and tell you that there are people in that country who cannot be safe in a situation. So to your mind, should we have these safe countries, or should we just have a moving target?

[Andrew Brouwer]

Thank you.

No, I would say that no country is safe all the time for everybody. The basic principle of refugee determination right now in Canada is that every claim gets decided on its individual merits. You explain why you are at risk and you have an independent expert adjudicator decide whether or not there's a basis for that claim, whether or not you need protection. That's the way to go. That's the fundamental, legally fair process.

I would say the very idea of the safe country list, at least from our position, is a no go.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur St-Cyr.

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

Thank you very much.

Mr. Brouwer, you talked in detail about the fact that the time periods are too short from the outset. I am convinced that, depending on the government, if claimants are required to go quickly to an interview, they will be forced to tell the truth; they won't have time to make up a story. The idea isn't clearly stated, but you can read it between the lines, see it implicitly.

Isn't it the opposite that could well occur? In other words, people who have experienced extremely difficult situations in human terms and who have been genuinely traumatized will have a lot of difficulty dealing with a process of that kind, whereas those who supposedly make up a story could well do better.

[Andrew Brouwer]

I think that's a fair analysis. From my perspective, reading this bill, and looking at the overall process here, it's been drafted by someone who has never sat down and worked with refugees to get a clear sense of how the system works, who has dealt one on one with refugees to hear their stories.

Absolutely, eight days.... You will have many claimants who will have possibly received bad advice on their route over to Canada. Maybe the smuggler they paid to help them get here, family members, or whoever, told them this is what they have to say. They come to us, as counsel. We work with them to explain the system, and it's over time that we get their true story.

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

From what you've told us, you're opposed to the concept of designating countries of origin. The act currently states that the criteria will be defined by regulation. You warned us that, even if we included those criteria in writing in the act, as some suggest, that potentially wouldn't give us an example to support that statement?

[Andrew Brouwer]

Yes, I do, thank you.

A number of years ago, the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches, and John Doe brought a case in the Federal Court challenging the Canada-U.S. safe third country agreement. As you know, and as Mr. Coderre knows, in the act right now there's a clear provision saying that you can only designate a country as safe if.... Well, the minister can designate a country that complies with article 33 of the refugee convention, article 3 of the convention against torture, and in coming to that position, the minister needs to take account of the human rights background, the asylum system, and so on.

So we took that case to court and gathered a great deal of evidence, specifically about the U.S. asylum system. Now, of course, the U.S. asylum system is generally a decent one, but does it fully comply all the time with its international legal obligations? Certainly under Mr. Bush, no, it didn't.

We brought that case before the Federal Court. The Federal Court found clearly and unequivocally that the U.S. does not comply with article 3 of CAT, article 33 of the refugee convention. So under those two criteria in the act, the court found that, no, that was a mistake; the designation was inappropriate because the minister said it complies when it doesn't actually.

That case went to the Court of Appeal, and the Court of Appeal found very clearly that the court has no role, essentially, in assessing the decision of the minister with respect to the application of the criteria for designation.

So that's our worry. You may put very decent-sounding criteria into this act about what is a safe country and what isn't. It will look good. It will get passed in Parliament and we will end up with countries being designated for political reasons, for all sorts of reasons, and there will be no review.

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

Ms. Taylor, a provision in this act currently prevents a person who has begun a process to claim refugee status from filing a humanitarian application. The person therefore cannot change his or her mind along the way, before the audience, and withdraw the file and submit a humanitarian application.

Aren't you afraid this provision is ultimately counter-productive? It could encourage people, once they realize the situation, to persist in their mistake rather than go the more appropriate route.

[Vanessa Taylor]

Yes, absolutely. I think that's quite a logical answer. Once the process has started, if people realize they ultimately may not have made the right decision, there's no recourse. They absolutely have to follow through with their decision and file an asylum claim. In those circumstances, especially if those people come from a designated safe country, they will be removed, even if considerations would have to be taken into account in view of their personal situation.

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

Earlier today, someone raised the following possibility. Rather than continue allowing the PRRA, the pre-removal risk assessment, in the case of individuals who have been refused, we could simply ask the Appeal Division to reopen that case if extraordinary events occurred between the time of the Appeal Division's decision and the actual deportation.

Do you think that measure would be a little better?

[Vanessa Taylor]

I think it would be a reasonable measure. What is a greater concern for the Centre des femmes immigrantes de Montréal is the fact that no recourse is possible once the application is refused. If the file could at least be reopened by another entity in the event of special circumstances, that would not be a problem for us.

[The Chair, Conservative, David Tilson]

Thank you.

Ms. Chow.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Thank you.

There's been discussion about whether an arm's-length group could do the designation of safe countries. Certainly we don't want to have this refugee reform process bogged down by partisan consideration, and I don't think the current minister wants that either. If that's the case, then certainly the hiring of the 100-plus officers should be done at arm's length. And if we support the safe countries—I don't myself, but there's been discussion about safe countries designation—then it should be an arm's-length group that recommends.... But so far, I can't come up with--I've been asking around--which human rights groups or organizations, or what kind of people, not only have the qualifications but are willing to put their name on the line to form a group. Or is there any existing group that could say they believe this country is a safe country? Are there any such human beings or such organizations out there?

When I asked Amnesty International that question they sort of gave me a look. They didn't say yes, but I think they were very clear. And neither did the Council for Refugees think there was any possibility.

In your mind, are there organizations out there that could provide clear, objective criteria to help with this, to be the advisory team that would make this designation?

[Andrew Brouwer]

That's the kind of thing that comes back to bite you later, but I frankly can't imagine a committed human rights organization or individual participating in a process like that. The basic legal principle is individual assessments of the merits of the claim, so as soon as you have a human rights organization participating in the designation of entire countries--

[Olivia Chow, NDP, Trinity—Spadina, ON]

Like Human Rights Watch or something?

[Andrew Brouwer]

Right. One would hope Human Rights Watch wouldn't do this either, because, again, it goes contrary to the basic principle of individualized assessments. It would require that they buy into the idea that there is a country that is safe for everybody and that they are in a position to know. I mean, as a human rights activist or worker, who's going to want to participate in a program that's going to deny access to protection or due process for certain groups of people? I can't see it. I can't imagine it.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Ultimately, if this bill is passed the way it is, it will be the minister who would have to make that decision.

[Andrew Brouwer]

Right. Again, there are ways that we could try to mitigate some of the harm. Maybe you could work on criteria that became so clear and so difficult to pass that very few countries would actually succeed. You could try to set up some committee that was at arm's length to do it. But the basic principal is—

[Olivia Chow, NDP, Trinity—Spadina, ON]

I don't want to be at a committee that wants anything to do with it.

[Andrew Brouwer]

No, and I think there would be serious questions about the credibility of any human rights organization willing to take on that role.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Everybody said the initial eight days are too short. Would 28 or 30 days be appropriate?

[Andrew Brouwer]

The length of time is okay, but the question about whether or not you're giving the individual refugee a chance to tell their own story is a separate issue. It kind of defeats the purpose. So let's say rather than eight days without counsel, you could have 28 days and you have a right to counsel. Essentially what you have is a mini hearing. Practically speaking, if the counsel is going to be there and the person is going to maintain the right to make their case, which is a fundamental human right, then what's the difference between that 28-day mini hearing to set up the claim and then the hearing that happens 60, 120, or 180 days later for the decision? It seems unnecessary duplication.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Are you arguing that we should skip the two steps and just have one step?

[Andrew Brouwer]

I'm not big on the status quo, but, generally speaking, I think the 28-day written PIF is okay. So maintain what we have and set up a process. Invest the resources and maintain a full complement of decision-makers so that you can actually have hearings quickly. Do it within roughly six months, with an opportunity to do it faster if a claimant says they've got their evidence and are ready to go, or an adjournment if they're still waiting for their evidence. Just schedule them as quickly as you can, as soon as the claim is ready to go.

Honestly, there's this sense, I think, among many people that refugees come here, make a claim, and then use it to wait as long as they possibly can. It's not true. Some might, but the vast majority don't.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Would four months be appropriate? I'm just trying to shorten it: a person would land in Canada and then within four months have the hearings either done or appealed and it's finished. Would four months be long enough?