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.

On the agenda

MPs speaking

Also speaking

Stephan Reichhold  Director, Table de concertation des organismes au service des personnes réfugiées et immigrantes
Richard Goldman  Committee Coordinator to Aid Refugees, Table de concertation des organismes au service des personnes réfugiées et immigrantes
Glynis Williams  Director, Action Réfugiés Montréal
Maude Côté  Program Coordinator, Action Réfugiés Montréal
Julia Porter  Settlement Social Worker, Association for New Canadians
John Norquay  Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)
David Matas  Lawyer, As an Individual
Ezat Mossallanejad  Policy Analyst and Researcher, Canadian Centre for Victims of Torture
William Bauer  Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual

4:34 p.m.

Conservative

The Chair Conservative David Tilson

We'll reconvene, ladies and gentlemen.

We have four witnesses.

Each of you will have up to seven minutes, if you wish to say something about Bill C-11.

We have before us in the committee room John Norquay, who's the staff immigration lawyer with the HIV and AIDS Legal Clinic in Ontario.

Where is that in Ontario?

4:35 p.m.

John Norquay Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)

Toronto.

4:35 p.m.

Conservative

The Chair Conservative David Tilson

Toronto. Okay.

Welcome, sir.

4:35 p.m.

Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)

John Norquay

Thank you.

4:35 p.m.

Conservative

The Chair Conservative David Tilson

We have, by video conference, Mr. David Matas, who is a lawyer.

We have a representative from the Canadian Centre for Victims of Torture, Ezat Mossallanejad, who is a policy analyst and researcher.

Finally, we have by video conference from London, Mr. William Bauer, who is a former Canadian ambassador and a member of the Immigration and Refugee Board of Canada.

We're going to start, and we'll give you each up to seven minutes.

We'll start with Mr. Norquay, who is in the committee room with us.

Mr. Norquay, you may proceed.

4:35 p.m.

Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)

John Norquay

Thank you.

I wish to thank the standing committee for the opportunity to appear this afternoon to provide my clinic's perspective on Bill C-11. My presentation will be limited to the proposed changes to the humanitarian and compassionate consideration sections of the IRPA.

I strongly urge the committee not to overlook the changes to the H and C system when dealing with the other important issues raised in the bill. While many of the refugee system proposals are procedural in nature, the H and C changes include a change to the types of cases that can be accepted. They represent a marked departure from Canada's decades-long tradition of humanitarian consideration and the general common law principle of equity upon which they are founded.

4:35 p.m.

Conservative

The Chair Conservative David Tilson

Excuse me, sir. I'm sorry. This is all being translated into French, so you'll have to talk a wee bit slower.

4:35 p.m.

Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)

John Norquay

I'm sorry. Thank you for that helpful hint.

The HIV and AIDS Legal Clinic Ontario is a non-profit legal aid clinic that has provided legal services to people who are living with HIV/AIDS in Ontario since 1995. Of the 4,000 requests for our services we receive on an annual basis, a significant proportion are in the immigration and refugee law area, and we have provided legal assistance over the years to hundreds of HIV-positive individuals seeking refuge in Canada.

Just to give a bit of context before I move into remarks on the bill, the situation of HIV-positive Canadians has improved dramatically over the past 20 years. With the advent of effective anti-retroviral treatment, many Canadians now enjoy a close to average life expectancy.

Unfortunately, in many parts of the developing world, HIV remains effectively a death sentence. The problems range from a vastly reduced lifespan due to a lack of HIV medications to the interference that general civil strife and economic instability pose to the delivery of health care services, and of course to a public hostile to HIV-positive persons in a way that would be difficult for any of us to fully comprehend. I am speaking about outright rejection by family and friends, expulsion from communities for fear of disease, and near impossibility of finding employment or housing.

The situation faced by HIV-positive asylum seekers and others without status in Canada highlights the very reason why H and C relief has historically been available and remains critical today. The idea behind H and C relief is to provide discretionary relief in cases not anticipated by the immigration legislation; that is to say, for those people who fall through the cracks.

One oft-cited tribunal case from 1970, Chirwa, characterizes H and C relief as applying in those cases that would induce a reasonable person in a civilized community a desire to relieve the misfortunes of another. It's an analysis that entails looking at an individual as the whole of their parts, in all of their circumstances.

Of course, H and C relief is discretionary and the onus is on the applicant to prove his or her case. There are no hard and fast rules about which cases ought to be accepted. The department's guidelines on H and C applications speak only of undue, undeserved, or disproportionate hardship.

Over the past 15 years, countless of my clinic's clients living with HIV who face extreme hardship in their countries of origin have been accepted on H and C grounds. This goes equally for failed refugee claimants and for those who've never made refugee claims.

If Bill C-11 is accepted in its current form without amendment, most if not all of those successful H and C applications would have been impossible to make in the first place, or, if made, would not have been accepted. The result would be deportations of individuals and families with HIV--who may be leading healthy and productive lives in Canada--to situations abroad where their lives are in danger due to impoverished health care systems, or to lives of misery generally because of serious restrictions on basic human rights.

The two sections of concern are, first, the proposed subsection 25(1.2), which bars H and C applications from refugee claimants during their claim or for one year following a refused claim. The other section is proposed subsection 25(1.3), which prevents all H and C applicants from raising arguments related to personalized risk.

On the issue of the one-year bar, it is very common for HIV-positive claimants to make an H and C application immediately after their refugee claim is denied when there is inadequate health care for HIV in their country. The Immigration and Refugee Board is not able to consider a risk to life owing to inadequate health care because it's excluded explicitly in IRPA under subparagraph 97(1 )(b)(iv).

The IRB is simply not able to accept these claimants where their life is at risk owing to their HIV status. An H and C officer can and--in practically all circumstances that I have experienced--does accept those cases. The one-year bar on H and Cs will make these applications impossible.

To make matters worse, most asylum seekers are not aware of their HIV status until they report for the medical examination required of refugee claimants. By then it's too late to choose to file an H and C application in lieu of a refugee claim, because even those who withdrew their refugee claims would face the one-year bar.

We believe the one-year bar would also result in driving refused claimants who have a strong H and C case underground. After all, if an individual knows they have a strong H and C case and the harm they face in their country is substantial, it's natural that this person would do everything in their power to evade enforcement and stay in Canada, hoping that after the one year has passed they might be able to file an H and C application that could be considered. This of course would lead to increased enforcement expenses and costly litigation.

As has been stated by witnesses who have appeared before the committee, the fact of filing an agency application does not result in any kind of hold on removal proceedings. Many witnesses have questioned the need for the one-year bar, or the bar on simultaneous agency applications, and I echo those comments.

4:40 p.m.

Conservative

The Chair Conservative David Tilson

You have less than a minute.

4:40 p.m.

Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)

John Norquay

Thank you.

I'm also very concerned about proposed subclause 25(1.3), which restricts the factors an immigration officer can consider in an H and C application. The section purports to eliminate consideration of factors related to refugee determination decisions or to risk to life or risk of torture decisions under section 97. Currently, H and C officers are not limited in any way in terms of the facts they are able to present. I imagine this section is intended to block refused refugee claimants from having another kick at the can--that is to say, from raising their refugee facts in an H and C application to see if that will work. The problem is this section reaches far beyond that goal in a way that, I submit, cannot be justified. First of all, it limits consideration of all personalized risk factors, whether or not a person has even made a refugee claim in the first place, let alone raised the same risk factors in an H and C application. For my clients, it would mean an immigration officer would not be able to consider the fact that they would not be able to find work because of mandatory HIV testing, or that they would be kicked out of housing because of HIV status.

4:40 p.m.

Conservative

The Chair Conservative David Tilson

You're going to have to wind up soon, sir. Sorry.

4:40 p.m.

Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)

John Norquay

Perhaps what I can do, just in the interest of time, is--

4:40 p.m.

Conservative

The Chair Conservative David Tilson

I know that committee members will ask you questions to cover all this.

4:40 p.m.

Staff Immigration Lawyer, HIV and AIDS Legal Clinic (Ontario)

John Norquay

Exactly, and I'll try to fit in what I have to say in my answers.

4:40 p.m.

Conservative

The Chair Conservative David Tilson

Thank you, sir.

Mr. David Matas.

4:40 p.m.

David Matas Lawyer, As an Individual

Thank you very much.

Bill C-11 is entitled the Balanced Refugee Reform Act. It supposedly balances improved protection for refugees with enhanced prevention of abuse.

For the bill to realize its aim of balance, five requirements must be met: one, there must be a need to improve protection for refugees; two, the bill must be effective in improving that protection; three, there must be a need to enhance prevention of abuse; four, the bill must be effective to enhance that prevention; and five, improved protection for refugees and enhanced prevention of abuse must be roughly equivalent, balancing each other out.

Does the bill meet these five requirements? It certainly meets the first. There is indeed a need to improve protection for refugees, because now there's no appeal system and there needs to be one.

Does the bill remedy that defect? The answer is, only partially. The bill does allow for the appeal division of the board to come into effect, but there are three problems. One is that not every refused claimant can appeal; those from designated countries cannot. Secondly, even for claimants not from designated countries, there is a two-year lag potential in the proclamation of the provisions about the appeal. Thirdly, the system weakens protections in other areas by the partial elimination of recourse to humanitarian applications, temporary residence permits, and pre-removal risk assessment.

As to the third question, is there abuse of the system that needs addressing? In my view, the system is too long. There are delays, and whether those delays are the result of abuse or not, we needn't determine, because long delays are in the interest of no one, genuine refugees as well as the system itself, of course.

Is the bill effective in removing delays? In principle, there are two causes for delays. One is fragmentation of the system. Each step takes time. If there are too many steps, that means too much time. If there are unnecessary steps, time is wasted. The present bill does not address this cause of delay. Right now, the system has two unnecessary steps—eligibility determination and pre-removal risk assessment—but they still remain. That is not to say that eligibility and pre-removal risk assessment are irrelevant, but it's important to distinguish between steps and standards. Not every different standard needs a different step. Eligibility determinations could be made by the board as matters of exclusion or jurisdiction. Pre-removal risk assessment could also be made by the board on a reopening application.

What the bill does, actually, is introduce a new step, these interviews, which are going to generate more time to the system. We've heard discussions about eight days and 60 days—eight days for the interviews and 60 days for the hearings of the board after the interviews—but this discussion has an air of unreality about it. First of all, neither the government nor the minister decides these times; only the chair of the board does, as a matter of the rules. Secondly, the fact of the matter is that the times can only be realized if they're workable. Having an interview eight days after the matter gets to the offices of the board is not workable either for the claimant or for the board. Indeed we've had a history of legislated times in the system that simply do not get realized because they are unworkable.

Take, for instance, the three-day rule, which says there must be eligibility determination within three days of a claim. The fact of the matter is that the three-day rule is almost never respected for inland claims, and the way it's respected in form is that the three-day clock starts ticking from when the officers are able to meet the three days. That is the practicality of what will happen with the interview.

Unless we have new resources, resources will have to be diverted from existing tasks to complete the interview task. How much the new step will add to the overall time of the process is speculative, but it's likely to be substantial.

One step that does not cause delays, but which the authors of the bill seem to think does, is an application for permanent residence on humanitarian grounds or a temporary residence permit, as a result of which there's a restriction on applications for these procedures that in fact does nothing to shorten removal because removal is possible now pending these procedures.

The other cause of delay besides unnecessary steps is backlogs. If the system gets overwhelmed, there is queuing. The backlog problem is not necessarily an abuse problem; it's a matter of claimants relative to capacity.

There are two explanations for the current backlog. One is the change in the appointments process from the old government to the new government and nobody being appointed for a couple of years until the appointment system was changed, and that generated a long backlog. We're now back at full complement, but that backlog is still there. The other is the claims from the Czech Republic and Mexico before visas were implemented. But now the visas are there, so those delays will eventually disappear.

The bill authors seem to be of the view that by speeding up the system they can lift visas from the Czech Republic and Mexico and perhaps other countries. In my view, that is unrealistic. Any time that is so short as to deter people from coming from non-visa countries, there is going to be a claims system that will not be effective to protect real refugees.

The bill fails on the test of balance on its own terms because of the staging of implementation: the enforcement measures, the decrease in access to humanitarian temporary resident permit applications comes into force immediately, and the appeal division of the Immigration and Refugee Board comes into force potentially two years later.

But the problems are more acute than that. Because we have a weakening of protection, a denial of access to a number of procedures that are now available, we have in balance a system where we've moved one step forward with the appeal division of the Immigration and Refugee Board and two steps backward. The net result is—

4:50 p.m.

Conservative

The Chair Conservative David Tilson

Excuse me, sir, you'll have to wind up. I'm sorry. Can you conclude?

4:50 p.m.

Lawyer, As an Individual

David Matas

I have one concluding sentence.

4:50 p.m.

Conservative

The Chair Conservative David Tilson

Perfect.

4:50 p.m.

Lawyer, As an Individual

David Matas

The net result is deterioration.

Thank you.

4:50 p.m.

Ezat Mossallanejad Policy Analyst and Researcher, Canadian Centre for Victims of Torture

Thank you very much.

I speak on behalf of a front-line agency helping survivors of torture, war, genocide, and crimes against humanity. I also speak as a front-line worker at the centre and as a former refugee who has gone through the process.

For 33 years the Canadian Centre for Victims of Torture has served more than 16,000 survivors from 130 countries. I am going to share with you some of our concerns.

Our first concern is about the provision of the interview at eight days. Based on our experience, 50% of refugee claimants who come to Canada have experienced war or torture. When they come here, they are highly traumatized. Most of the time, upon their arrival they are unable to disclose everything they have endured. This is especially true for survivors of rape and other types of gender-related torture.

Second, we submit that the provision of 60 days is neither fair nor feasible. Torture victims often require medical or psychological assessment about torture. Medical assessment sometimes take us two months because they need X-rays, MRIs, and so many things. Also, it sometimes takes me two months to get an appointment from a psychologist or a psychiatrist to assess the torture of a person who has come from a tyrannical regime. It is not at all feasible. How can we expect them to submit everything?

Also, survivors of torture and other international crimes develop a sense of withdrawal in regard to sharing their fearful experiences. This is true specifically about other types of gender-related persecution. Right now, we have the pre-removal risk assessment. We have H and C. We have some kinds of remedies for them, but I strongly believe that we should continue with H and C. Because if you deny them H and C for one year, it is no longer humanitarian; it is no longer H and C.

Also, there is the issue of the problem of safe countries, because we have certain survivors--from any country--who go through torture due to their sexual orientation. It is sometimes due to gender persecution and some types of harassment. I don't think we should just say that they have come from a safe country and they are being denied access to the refugee determination system.

Also, another issue of concern is the future of the Immigration and Refugee Board. Right now, we have a quasi-judicial system. On the question of civil servants, we don't know what will happen under the new bill. Experience from other countries has shown that some of these civil servants are not competent. They don't know, and they go with bureaucratic considerations.

Another issue is the principle of non-refoulement to torture. Under article 3 of the convention against torture, article 7 of the Canadian Charter of Rights and Freedoms, and article 12 of the charter, we cannot send anybody back to torture to any country. That is also based on the ruling of the Supreme Court of Canada in the year 2002 in the Suresh case.

I'm afraid that implementation of Bill C-11 would lead to keeping new people in limbo, because definitely legislation like that cannot overrule Canadian international obligations as rendered in conventions against torture or Canadian constitutional provisions. What will happen if they have hundreds of rejections? Will we keep them in limbo? We cannot remove them. Limbo is also a technique of torture, and there are many tyrannical governments. It has also already led to the re-traumatization of our clients. I submit that the issue of refoulement to torture would also traumatize our present clients. They feel that Canada is not taking care of this important issue, and it might lead to re-traumatization.

I submit that this Bill C-11, if it becomes law, would impose new costs to the Canadian taxpayers for enforcement, removal, and detention, all those things.

Finally, I submit that since 1976, the Immigration Act has gone through amendments 52 times and it has not improved the system.

There is one main defect that I want to bring to your attention as respected legislators. It's the issue of linking victims' immigration and human rights and the issue of the need for an ombudsperson responsible to Parliament to hear grievances about the implementation of refugee acts.

Thank you very much.

4:55 p.m.

Conservative

The Chair Conservative David Tilson

Thank you, sir.

Our last presenter is on video conference from London. Mr. Bauer, you have up to seven minutes.

May 25th, 2010 / 4:55 p.m.

William Bauer Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual

Shall I start now?

4:55 p.m.

Conservative

The Chair Conservative David Tilson

You can start now. One of the tricks that we're all getting used to is that there's a short delay between when you speak and when we speak, so we have to realize that.

Thank you. You're on the air.

4:55 p.m.

Former Canadian Ambassador, Member of the Immigration and Refugee Board of Canada, As an Individual

William Bauer

Okay.

I don't have enough time, really, to deal with all aspects of Bill C-11, so I'll try to concentrate on the aspects that have produced the most attention.

The designated safe country of origin is one of the more controversial aspects. It's been systematically attacked by I think every lobby group that's appeared before you, and indeed it is an extremely sensitive subject for some people.

Most of the EU countries utilize some form of this, which is simply an attempt to avoid clogging the whole system with manifestly unfounded or frivolous claims. The criteria for designating safe countries of origin set out by the EU council are very precise, and although those applied by individual countries may vary in detail and procedures, the fundamental criteria must be met.

There are many sources for determining SCOs, but I would mention two that are used all the time. The United States Department of State human rights reports are issued every year on every country in the world, including Canada. They are generally considered quite unbiased and objective, and they have been used for many years by the IRB and by counsel. The British Home Office also maintains a country of origin information service.

I don't think our government, in its proposal, is planning to have a very long list, but I agree very strongly that they should have a procedure for establishing the list, if indeed that's the way they go, that would produce a list that's accurate and objective.

One criticism that I've heard is that a system would be discriminatory and that each claim must be individually assessed. Even now, the IRB is using discriminatory procedures in its national streamlining directions, which allow for determination of claims from about 20 different countries without a hearing at all, with just a simple interview. I've heard no complaint from any organization about this, probably because it almost automatically produces a positive decision.

The original legislation also provided for a list of safe third countries, which envisaged rejection of claimants who on the way to Canada pass through a country that had a respectable refugee determination system, human rights, and all that. The theory was that anybody fleeing persecution would apply for asylum at the first place they arrived at, rather than shopping around for something they liked a little better. This received quite a bit of pressure, similar to what the SCO is being subjected to now, and in the end, it has never been promulgated, and I presume it never will be. There's never the political will to put this through.

On the question of timelines, we've talked about the refugee claimant talking to a civil servant for about half an hour within eight days of arrival. I don't see anything wrong with this, and the criticism strikes me as being very disingenuous. As it stands currently, he meets an immigration officer and has a port-of-entry interview, which is held under the worst conditions, when everybody's tired, when the noise is about, and with practically no satisfactory description of what was actually said. The eight-day period would enable a claimant to describe the case more thoroughly in a much better environment and then be set for a hearing of his claim in 60 days. I doubt if the 60-day target will be met, but it's a desirable objective, and it certainly provides adequate time for preparation.

Regarding the staffing of the IRB, I'm all in favour of staffing it with public servants. I've heard public servants criticized by many lobbying groups as being incapable of exercising independent judgment, as being anti-immigration, and as being generally inferior to almost any other pool of talent among the Canadian population. The criticism has arisen again during the discussion of Bill C-11, and I find all this criticism shoddy, offensive, and inaccurate.

I've worked with immigration officers for 40 years in various countries of the world, and I found them well trained, sympathetic, and fair, sometimes in the most difficult conditions you could imagine. They carried out the law of Canada; they didn't carry out ministers' wishes. I think that should be understood. That's what we're all trying to do—carry out Canadian law as passed by Parliament.

The worst bias and interference I ever encountered was from an order in council appointee to the IRB who had a very strong bias against any negative decisions. I've always argued against patronage in the IRB, and I've watched the attempts in the past few years to eliminate it or at least dilute it, and I have some hope that these attempts will be fruitful.

On the appeal division, the original reason for putting it forward was to compensate—