Citizenship and Immigration Committee on May 25th, 2010

[The Chair, Conservative, David Tilson]

We're going to start the first hour this evening. We have two witnesses before us.

Mr. Van Kessel, I'm going to read this, and it's going to take a long time to say all this. Gerry Van Kessel is the former director general, refugees branch, Department of Citizenship and Immigration, and former coordinator, intergovernmental consultations on asylum refugee and migration policy, Geneva. Welcome to the committee, sir.

The second witnesses are on video conference from Toronto. The Mennonite New Life Centre of Toronto representatives are Jordan Pachciarz Cohen, settlement worker, and Maria Eva Delgado Bahena, refugee. So there are two of you.

We will start off as I think I explained to you when we were off the record. Each of you will have up to seven minutes to make a presentation and then there will be questions from committee members.

Mr. Van Kessel, welcome to the committee. We thank you for coming, and you have up to seven minutes to make a presentation to us.

[Gerry Van Kessel, Former Director General, Refugees Branch, Department of Citizenship and Immigration, Former Coordinator, Intergovernmental Consultations on Asylum, Refugees and Migration Policy, Geneva, As an Individual]

Thank you, Mr. Chairman.

First of all, let me thank the standing committee for this opportunity to share some thoughts on refugee determination and the bill that is now before you. It is my hope that what I have to say will be of help to you.

When discussing immigration and refugees, we often hear about the need for balance. In the case of refugee determination, a balanced system is one that protects claimants who need refugee protection and denies the benefits associated with refugee claims to those who don't need protection. The challenge starts with the fact that claimants properly remain in the country until their claim is settled.

A fair refugee system is one that gives time to prepare and make the claim, time to decide the claim, and time to review the decision. This can be a most time-consuming process, an unintended consequence of which is its appeal to those looking not for refugee protection but to remain and work. By making claims and by using all review mechanisms available to them, they can stay for long periods before the refusal becomes final and removal can take place. Because a refugee claim and removal can take years, we then hear that it is inhumane to remove people who have been in Canada for many years and have settled in well, an argument not without merit.

That the refugee determination system has resulted in what are called "mixed flows" cannot be disputed. Refugee claimants first started to arrive in industrialized countries in large numbers in the middle to late 1980s. Now more than 10 million have arrived. The approval rate is in the area of 25%, compared to about 40% in Canada, but the "stay rate"—that is, claimants who for whatever reason end up staying—is around 90%. This is because most countries have even less success than Canada in removing unsuccessful refugee claimants.

These numbers tell us that, one, persons making refugee claims are more motivated by factors not mentioned in the convention refugee definition than by the need for refugee protection, and two, making refugee claims makes sense as the chances of being able to remain are good—if not permanently, then for lengthy periods—regardless of whether there is a need for refugee protection.

In this regard, a study by a University of London professor is illustrative. He interviewed refugee claimants who told him that a one-year stay made making a claim worthwhile. Making a claim is about choosing a better life for themselves and their families. That they do this should surprise no one, but it is not what governments, whether they are pro- or anti-immigration, intended when they signed the Geneva Convention.

For states, border control is an expression of sovereignty. International law makes this clear. In signing the Geneva Convention, states agreed to set aside issues of sovereignty in the case of refugees. The numbers indicate that they have also given up sovereignty over non-refugees who are in the refugee determination flows.

So when governments deal with refugee determination flows, they look for ways to respond to the non-refugee component, but unlike the case of illegal immigrants, they do so within a framework of their obligation to protect refugees. Governments have been doing this now for 25 years.

These changes vary greatly, from constitutional change in Germany, to visitor visas, to more resources, to procedures targeted at non-refugees, to far greater efforts at removing failed refugee claimants. Each change has resulted in criticism from NGOs and other advocates that refugee protection would be diminished as a result. It is my conclusion that without these changes the refugee system would have collapsed.

The fact that refugee determination systems remain intact, even if an ideal balance remains elusive, indicates that the balancing act has had success. One aspect demonstrating this is the increase in approval rates resulting from proportionately fewer non-refugees than refugees who are coming to our countries, as refugees continue to find that the effort of getting to our countries is worth the effort. And I readily acknowledge that it is an effort.

A sound determination system needs to function in an integrated manner. Resources, which are decision-makers and their support, procedures and volumes must be in balance. Decision-makers need to have the skill and knowledge to make good decisions and they need to be sufficient in number to keep the processing current. Procedures have to be fair so that decisions are sound. At the same time, they have to be efficient to discourage non-refugees. Finally, the volume of refugees must be what the resources can handle. Sudden and unexpected volumes of refugee claimants are more likely to end up being handled through special measures, such as temporary protection and amnesties, than by more decision-makers.

The measures aimed at volume are varied. The most obvious are the imposition of visas, more secure travel documents, interceptions, and safe-third-country and country-of-origin provisions. Procedures aimed at non-refugees are intended to make it unattractive for them to apply. A problem with resources, aside from cost, is that they almost always take a long time to put in place in response to sudden increases in the number of claimants. The result is of course longer processing times.

When I look at the changes the government is proposing, I see a balance. The system will be fairer as a result of the appeal on law and merit.

As an aside, it will be interesting to see what the impact of the appeal will be on processing times and on approval rates. It's worth pointing out that even without an appeal system at the present time, Canada has a considerably higher approval rate on average than all other countries that have an appeal system.

If it is introduced for persons from safe countries of origin, the status quo will really remain unchanged from what we have today. They will still be ineligible for the new appeal system, but they will continue to have access to the Federal Court.

The one-year limit makes sense because it denies the opportunity to prolong the process in cases where the issue has already been dealt with. More removals are essential because they confirm the message that this is the outcome of a negative decision.

In conclusion, I think the changes are well balanced, but as for any system of this type, it will not take much to upset the balance.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Thank you very much, Mr. Van Kessel, for your presentation.

It is now the turn of the Mennonite New Life Centre of Toronto. The two of you can speak either individually or together for up to seven minutes.

Thank you.

[Jordan Pachciarz Cohen, Settlement Worker, Mennonite New Life Centre of Toronto]

Thank you.

My name is Jordan Pachciarz Cohen and I am a settlement counsellor at the Mennonite New Life Centre. I'm also a law clerk. I work with a lawyer in Toronto preparing personal information forms for people's refugee claims.

First, thank you, Chairman. The Mennonite New Life Centre would like to thank the Standing Committee on Citizenship and Immigration for taking the time for community consultations on refugee reform. We trust that the following recommendations will help inform your decision-making and amendments to this important piece of legislation in order to ensure that protection continues to be the priority in a fair and efficient refugee determination system.

I think we all share a common concern to have a fast, efficient, and fair system. However, there are several concerns that we do have with Bill C-11, and because of our limited time, this restricts us to only speak to a few of them.

Our first concern is with the designation of “safe” countries and the lack of access to an appeal for the designated safe countries. We believe this threatens to politicize the refugee system and compromise the independence of the Immigration and Refugee Board. We believe that individual assessment on the merits of each case is required without government intervention and without influence from authorities making designation of safe countries based on any political system. Also, it's important to note that claims from countries that are commonly thought of as safe are those that would most require an appeal process. This is because there are complicated issues of fact and law, such as the availability of state protection in countries that are generally thought of as safe.

One of the other concerns is the access to humanitarian and compassionate applications, and people having only 12 months after a negative decision to present a humanitarian and compassionate application on these humanitarian considerations. First, I would like to mention that many claims are not refused because of lack of credibility or people who are trying to abuse the system, but very many claims are refused because of the narrow refugee definition and are refused based on state protection, access to state protection or internal flight alternatives. The actual immigration refugee division or the refugee division is making a determination that people do face risk but not actually persecution, so risk should be able to be assessed at the humanitarian and compassionate level.

I want to give you some examples of certain situations that may be encountered by people who wouldn't have access to H and C considerations but who should. One is if a family arrives in Canada and makes a refugee claim, there's one member of the family who has dual citizenship because he was born in a different country from the country of persecution, but has never actually lived in that country. Another is if the entire family arrives in Canada, makes a refugee claim, are accepted, but there's one family member who is over 21 who is not able to be included in the permanent residence application as a protected person, and this person has no other family in their country of dual citizenship; they have no connection to that country whatsoever, and they would be sent to a place where they have nobody and have no idea of what the situation is there and they would be separated from their family.

Another situation could be a person who has a child with a permanent resident or Canadian citizen, and if that person is deported from Canada there should be humanitarian concerns for the best interests of the child to have both parents remain in Canada to raise that child.

There are many other different circumstances that could arise; those are just two examples.

I'm going to move on to the timelines of Bill C-11 and the eight-day interview. We fear that an interview with a public servant after eight days of making a claim will lead to poor decisions. How can one expect to gather accurate information when questions asked are not in a calming and trusting environment?

Refugee claimants require good advice in order to present their claim, and they're unaware of the laws and procedures and what information is actually necessary to mention and what is important to their claim. Very often they're given advice prior to arriving in Canada by unscrupulous individuals, and without receiving legal advice, they may present information that is incorrect and inaccurate.

In my work in meeting with people to present their claims and to put their personal information form into narrative form, often claimants believe they cannot mention events that occurred if they don't have the physical evidence to back them up. So they leave that information out because they're unaware that their oral testimony is of evidence and that's why their credibility is being evaluated at their IRB hearing.

There's fear of public officials. Often the agents of persecution in their home country are public officials, and to present in an environment where there's a public servant who's interviewing them, there's no building of trust, no time, and not a safe environment in which to present their case. It's not enough time to get psychological reports in place and put together accurate information regarding their claim.

I think Maria Eva is an example of someone who I feel would probably have had a lot of difficulty being accepted as a refugee with the proposed Bill C-11, the current refugee reform, and would probably not have been accepted without being given the necessary time to prepare her case. I'm going to let her present briefly on her situation.

[Maria Eva Delgado Bahena, Refugee, Mennonite New Life Centre of Toronto]

Hello. My name is Maria Eva Delgado Bahena. I'm from Mexico. I was accepted as a refugee in Canada because I was beaten by an abusive partner who not only holds a government position but who was also extremely corrupt. I have gone to the authorities many times, and even to the state governor for help, but there was no protection for me.

We are totally thankful for the time to prepare my case properly. If I had to talk to a public servant, after eight days, to tell my story, it would have been impossible. I would have only explained part of my story. I would not have been able to talk about the intimate details, nor his involvement as a corrupt government official. I was even terrified to speak about other events at my hearing, and this was after getting a lot of support from psychologists, lawyers, and social workers. It was so traumatic, I could not imagine having to do that after eight days.

At my hearing, when they started to question me about why we had arrived in Canada, I didn't know how to tell about something so painful for me to someone who would judge me. I was ashamed of remembering too many things.

It took me many months to get all the documents and evidence I needed to prove my case. There were a lot of documents that I wanted to present, but the translation of them would have taken too much time that I did not have.

I know my country has been perceived as a safe place. My children and I are proof that the system in Mexico has deteriorated, because my constant complaints in order to get justice, including speaking to the government secretary and even the governor himself, were rejected because my aggressor is a person of public political profile.

Mexico is not a safe place. The authorities cannot provide its citizens protection. That is why I was accepted here.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you very much.

I'll start off with one question to you, Mr. Van Kessel. You look like you've been around this game. Can you tell us whether the system that's being proposed under Bill C-11, all or part of it, has been used in other jurisdictions, and if so, what are they—everything, any of the issues that have been raised? I'm sure you're aware of them.

[Gerry Van Kessel]

There are so many elements to any refugee determination system, and so many variations on each element, that the short answer is yes. When you take a look at what all countries do.... For example, safe countries of origin and the limitation on the right of appeal--that's the one I'm most familiar with right now--are used by a number of countries as they try to deal with the issue of people. I think it's really important to understand that we're talking about people who want a better life, who can't get it through the normal immigration stream but who see this as an opportunity. It's popular, because it gives them time to put down roots.

What countries have done in some cases is to send people home. Because of the safe-third-country provision, which some countries have, they do not have the right to what is called an asylum shop. You do not have the right to choose where you apply. If you are in a safe country, that's where you apply.

With a safe country of origin, it suggests that the likelihood of being a refugee is much less because you come from a country much like the country you happen to be in, and therefore a different kind of procedure is applied. It is very common to introduce express procedures that are based also on time limits for those people who are felt to be—I was with the department ten years ago—what we used to call manifestly unfounded claimants. We even tried a system called “credible basis” to try to have an express system for people who had no credible basis for their claim.

Yes, these various methods have been tried and are in place in many countries right now. That's the short answer to your question.

[The Chair, Conservative, David Tilson]

Thank you.

Welcome back to the immigration committee, Ms. Mendes. You have the floor for seven minutes.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Thank you very much, Mr. Tilson.

I'm glad to see you, Mr. Van Kessel. We've known each other for almost ten years, in our former lives.

I'm curious to find out, from your many years of experience and the many travels you had in your job, how is it that we can determine a safe country of origin? For example, in the case of this lady who presented her case from Mexico, how could we have this list and still be the welcoming country that we should be for cases like this lady's?

[Gerry Van Kessel]

I do not profess to be an expert on the new system. I know a fair bit about systems overall, but I have not spent time looking in detail at this. As I understand the safe country of origin proposal, it would still allow a full hearing, as for any other person. The only difference is the appeal. That is the only difference. Therefore, the situation for persons who come from safe countries of origin remains as it exists at the present time, because there is no appeal for anyone right now. So that is a trade-off. If you have confidence that your first level decision-making is good, if you have that confidence.... If I may say so, you can argue individual cases; you always can in this business. As a general rule, the very fact that we have the highest approval rate in the world suggests to me that by international standards we do. I think what's very important are the criteria that are used and adopted when it comes to--

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Determining safe countries.

[Gerry Van Kessel]

--determining safe countries of origin.

I'm familiar with the visa imposition, for example, on the Czech Republic and on Hungary, in my time as DG, and the difficult discussions we had internally--also with the minister at that time--around what were the balances we had to have. At that time it wasn't safe country of origin as much as a visa that would simply cut off people from arriving, because you would never give visas to people that you assumed wanted to stay permanently.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

But to go back to Mr. Cohen, if I may, what Mr. Van Kessel has just said is that Ms. Delgado Bahena would still have been able to apply under the new rules. Do you understand it that way?

[Jordan Pachciarz Cohen]

Yes, I do. However, the concern is not the safe country of origin, in Ms. Bahena's case; it's more the timeline and the eight-day interview process. She was explaining that she would not have been able to disclose certain information because of trauma and fear of speaking to a government official and feeling that there was a relationship with Canada and the U.S. in NAFTA. It wasn't confidential information. She was not sure whether that information would be shared with the government in Mexico or not.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

And access to documentation, I imagine.

[Jordan Pachciarz Cohen]

That's just one aspect.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Okay.

Would you agree with that, Mr. Van Kessel?

[Gerry Van Kessel]

The information being shared with Mexico?

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

No, no, the eight days, that it could be—

[Gerry Van Kessel]

Again, I don't understand the details of the system, and I don't pretend to, but it's one thing to make a claim in eight days, but the hearing is in forty days. I don't know what happens between the eight and the forty days, in terms of additional information that can be provided. I'm just not aware of that.

Where do you draw the line? I remember being involved in internal debates around timelines, and there's always an argument for extending. Where does one draw the line? You have to draw it somewhere and you have to be cognizant of the fact that there have to be limits. Otherwise, you defeat the purpose of the timeline itself.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

But we do understand, and that's my reading of the bill so far, that the eight-day provision is not actually part of the act, per se. It would be part of regulations, if I'm correct in assuming that. So I imagine that would be reasonably flexible. No?

You wanted to say something, Mr. Cohen?

[Jordan Pachciarz Cohen]

Yes, please.

I believe that the eight-day provision is in the act, but the sixty-day hearing is not in the act.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

It's the other way around. The sixty-day hearing, actually, I think is in the act. It's the eight days that isn't. Yes, the sixty days is in the act; it's the eight days that isn't in the act. It would be part of the regulations of implementation. So I imagine this is up for discussion; that is my understanding.

But it does seem like a very short period of time for someone to actually gather all the information and have this front-line person make a decision on how admissible her or his case is.

[Gerry Van Kessel]

What I'm not aware of is whether that eight days is when all the information must be gathered or whether that eight days is for the process of starting to gather the information. I recall how important it was to gather information as early as you could, particularly around identity, to deal with problems of identity. One of the huge problems we used to have was in fact not knowing who people were. The longer it took you to ask them, the more likely it was that you wouldn't get the answer you actually needed, to know who the people were. So that's one of the other aspects.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

The timeline?