Evidence of meeting #17 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 claimants.
A recording is available from Parliament.
Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual
Yes, of course, but not all appointments to the IRB are patronage appointments. I had a career of 40 years fighting for human rights. I knew many countries. I was appointed on the basis of my merits as a public servant.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Well, what about the rest of the people who were appointed to the IRB?
Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual
I can name you IRB members who are extremely good and were also patronage appointments, for that matter. I'm not saying patronage does not permit good members to serve. What I am saying, though, in a functional term is this: if patronage is a prominent part of the choice, people who are good, who are trained, and who become excellent members may find themselves out of a job if the government changes. Then a whole lot of newcomers have to start. That is not an effective way to run a tribunal. That's all.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Mr. Bauer, you said you served in Rome. Were Rome and Greece under your purview at the time?
Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual
I served in Rome from 1959 to 1961.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Then you're familiar with the Balkans, correct? Would you say that Greece is a safe third country?
Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual
I would say that Greece is subject to the rules of the European Council and the European Court of Justice. I've read the reports on Greece, because you seem to ask a lot of people that question.
Liberal
Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual
I have no idea. There is no yes or no, Mr. Karygiannis.
Greece has a number of flaws at the local level--
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
If there's no yes or no, then we don't have a list of safe third countries. There's no yes or no.
Conservative
Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual
I haven't mentioned Greece, Mr. Karygiannis.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
In any case, it is my turn. I will change the subject, but it will not make much of a difference.
I will take advantage of the fact that we have two lawyers with us. I have a more technical question about the bill and its interpretation, and it deals specifically with the right to counsel, for a claimant, at every stage in the refugee claim process.
At section 8 of the bill, section 91 of the act would be amended to give the minister the power to make regulations governing who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the minister, an officer or the board. The bill states: “...including an interview before an official referred to in subsection 100(4.1)”. In other words, it says specifically that the minister will have the power to determine which claimant has a right to be represented or advised by a lawyer during the interview.
Further in the bill, at section 23, subsection 167(1) of the act would be amended to read: “A person who is the subject of Board proceedings and the minister may, at their own expense, be represented by legal or other counsel.” I am concerned that this provision does not indicate that this also applies to the interview with the officials referred to in subsection 100(4).
That is the technical aspect. My conclusion is that this provision appears to be vague. So, during the interview, does the bill guarantee that a claimant can be represented by a lawyer, or will that depend on the minister's authorization by way of regulation? My question is for both lawyers, but the other witnesses can also respond if they wish. Do you interpret this provision the same way I do, or am I mistaken? If you support my view, does that concern you? If so, should the bill not specifically say that a lawyer can advise a claimant at every stage, including during the interview?
Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)
I would defer to Mr. Matas on that point.
Lawyer, As an Individual
I'm happy to try to answer that.
The bill itself doesn't address that issue, and there has been some concern. Elsewhere in the legislation it says you have a right to have a lawyer before the Immigration and Refugee Board for the actual hearings. In my view, it would be a useful addition to this bill to assert a right to counsel at these interviews.
Basically clause 8 says that if there is a counsel, it can be limited to perhaps being lawyers and members of the Canadian Society of Immigration Consultants, which is the way it's limited now before the Immigration and Refugee Board, but it's silent on the right to counsel, and in my view it should not be.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
Fine.
I like your clarification. I understand better now.
Further, in section 167(1), it says: “A person who is the subject of Board proceedings and the minister may, at their own expense, be represented by legal or other counsel.”
Regarding “who is the subject of Board proceedings”, in your opinion, does that include the official who will conduct the interview, within the meaning of the act, or is this limited to the hearing per se in the hearing room?
Lawyer, As an Individual
Section 167 right now, as I understand it, deals only with the hearing itself and not with the preliminary interview. If you want the legislation to have something that deals specifically with the interview, there should be a specific provision inserted.
NDP
Olivia Chow NDP Trinity—Spadina, ON
I have a question for Mr. Norquay from the HIV and AIDS Legal Clinic. Malawi and Ghana especially are on England's safe country list, but it seems to me that being gay or lesbian in Ghana is punishable by law. Can you describe some of the situations you think would happen if gay men, for example, were sent back to places like Ghana or Malawi, and what your experience with HIV and AIDS spread has been in some of these African countries that claim to be democratic and would be safe? Certainly in my mind they're not.
Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)
I know that other witnesses have raised the issue that, for example, claims based on domestic violence or homophobia would perhaps get short shrift because often countries that might be considered democratic do have problems with those issues. I would certainly say that discrimination related to HIV and AIDS is another type of discrimination to add to that list. I see absolutely great potential for my clients to be refused an appeal.
I'll give the example of Mexico. Mexico is a country where for the most part gay men are being refused refugee status right now whether or not they're HIV positive. There's a wealth of evidence that demonstrates that there's very serious hardship, for example, with respect to employment. So if someone doesn't have the right evidence the first time, or if after 60 days they're not able to marshal that very particular kind of evidence, they might be refused at the first hearing, but they would have been successful at the RAD, depending on whether an office in Mexico was on that list. If it was, then they'd lose that opportunity.
NDP
Olivia Chow NDP Trinity—Spadina, ON
Right now, the Bloc and the New Democrats have been very clear that we are against a provision, which is I think proposed section 109.1, which designates some countries as safe, so that the refugee claimants from these countries would not have an appeal given to them. Has your organization talked to other organizations to try to persuade members of Parliament that this is not a good procedure and this is not a good amendment to IRPA?
Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)
Yes. I've been bringing the perspective of my office to other groups of lawyers—for example, the Refugee Lawyers' Association of Ontario and the Canadian Council for Refugees, among others—and absolutely informing them of our perspective. Since the energies are focused in those organizations, I've been allowing them to take the lead. But it's certainly one of the issues of concern for my office, although, to be perfectly honest, if I'm going to be frank, the restrictions on the humanitarian and compassionate—
