Evidence of meeting #18 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 appeal.
A recording is available from Parliament.
8:10 p.m.
Conservative
The Chair Conservative David Tilson
Oh, I think they'll have some, but we'll hear from the other people first, Ms. Kennedy. Thank you for your presentation to us.
Mr. Berger, you may have up to seven minutes.
8:10 p.m.
Max Berger Lawyer, Max Berger Professional Law Corporation, As an Individual
Thank you very much.
By way of background, I am an immigration lawyer and I've been appearing before the board since 1989, the year of its inception. I appear quite regularly before the board.
I would characterize this act as one step forward and one step back. If I had to choose between Bill C-11 and the status quo, I would...[Inaudible--Editor] ...given the restrictions on refugee rights that we see in this legislation.
In my seven minutes, I want to focus on—
8:10 p.m.
Conservative
The Chair Conservative David Tilson
Mr. Berger, I'm sorry. You went off the air for a minute. Could you repeat what you just said?
8:10 p.m.
Lawyer, Max Berger Professional Law Corporation, As an Individual
I'm not sure at what point I went off the air, but I was saying that if I had to choose between Bill C-11, the current legislation, versus the status quo, I would choose the status quo, given the restrictions on refugee rights we see in this legislation.
In my seven minutes, I want to focus on just four points that I see as the most egregious in this legislation.
The first point is on the eight-day interview. A lot has been said about it being a ridiculously short period of time, and of course I agree with that, but not much has been said about the abolition of the PIF.
Under this new act, the PIF, the personal information form, which has been the anchor document of our refugee system for the last 21 years, is going to be abolished for this interview. I'm of the school that if it ain't broke, there's no need to fix it. The PIF and the way the narrative is prepared, in a calm, civilized manner in a lawyer's office, is the best way for a claimant to prepare his story for the board.
What we're replacing it with is going to be similar to the port-of-entry interview, and we've all had terrible experiences because claimants are not sophisticated narrators of their history. The interview is going to come out all scrambled and jumbled: a story with no head and no tail.
If the objective of putting the person in front of an interviewer in eight days is to get hold of him before he has a chance to be contaminated by fraudulent consultants plying them with fraudulent stories in their community, well, that objective is not going to be served, because someone who wants to commit a fraud will just find a fraudulent consultant earlier, within the eight days. So my proposal is to just leave the PIF as it is and abolish the eight-day interview altogether.
The second point is with respect to the first-level decision-maker being a civil servant. I think it's a bad idea. The goal should be that we need the best possible decision at the first-level decision-making process.
In regard to the current GIC appointees, while I don't like the politicization of the process, we have members who come to the board with a wide variety of experience, having been on boards and tribunals in the past. What we're doing now is ratcheting down the quality of decision-making by restricting it to civil servants. I think that's a mistake.
My third point is with respect to the designated country list. Here, I'm going to suggest a compromise between the government's position and that of most of the refugee advocacy groups that are against the list, including me.
My compromise is this. If you are from a list country and you tell a story to the board that is true and you still lose your case, not on credibility, but because perhaps there's been a change of circumstances or on state protection or an internal flight alternative.... But if your credibility has not been challenged and you're from that list country, you should still have the right to a RAD, to the refugee appeal division. You should have as much right to the RAD as someone from a non-list country whose credibility is completely trashed at the first-level hearing.
The Czech Republic is a perfect example, because the Czech Republic is going to be the first country on that designated list. I do a lot of these Czech Roma cases. In almost all of them, their credibility is not impeached. They lose because the board seems to think that in the last year or two there has been a miraculous change in the government in the Czech Republic that makes it safe for the Roma claimants.
That's my compromise position here. So the RAD would be denied only to those people from a list country who have been found not to be credible in their history of persecution.
The fourth and final point, Mr. Chair, is that we have to make sure that no one falls through the gaps. Here I'm talking about the fact that there's no H and C and no PRRA within a year of the final negative RAD decision. There are two issues here.
First, in that one-year window, if new facts emerge that would shed a different light on the claim and demonstrate a real well-founded fear of persecution, what can we do for that person to ensure he doesn't fall through the cracks? Because I don't think our courts would countenance him or her being refouled. I think it's against our Charter of Rights and Freedoms. My suggestion for this is that in such an eventuality, the refugee board be allowed to have a motion to reopen the refugee claim. That was something that was proposed when IRPA was being contemplated, but in the end it was not adopted.
The second aspect of this--and this is the final point, Mr. Chair--is with respect to falling through the gaps. Not every claim of persecution is captured by section 96 or section 97, either by the convention refugee decision or by cruel or unusual punishment in section 97. I speak in particular about claims that are based on extortion by criminal gangs. Those are the kinds of cases, and we see a lot of them, where there are legitimate claims--these claimants are in fear for their life--but there's no nexus to the definition so they can't win under section 96. The courts have been ruling that those claims are based on a fear of generalized violence, so they don't fall under section 97. And under Bill C-11, those kinds of claims would fall right through the cracks. They couldn't win in the refugee hearing, and they don't have the right to an H and C, to a humanitarian and compassionate application. So we need to make sure that those kinds of claimants do have the right to H and C, and H and C based on risk, right away.
Thank you.
8:15 p.m.
Conservative
The Chair Conservative David Tilson
Mr. Berger, thank you for your presentation. You obviously know your material, and we appreciate that.
Our final speaker is from the Quebec Immigration Lawyers Association, Ms. Pia Zambelli.
8:20 p.m.
Pia Zambelli Member, Legislative Review Committee, Quebec Immigration Lawyers Association (AQAADI)
I am here on behalf of the Quebec Immigration Lawyers Association, which has some 150 members in the province of Quebec. I have been practising immigration law since 1988, and I served for five years on the Immigration and Refugee Board, but the views I am presenting now are consensus views of the immigration bar in Quebec.
AQAADI's position, in a nutshell, is that the Canadian refugee determination system does not need Bill C-11. This so-called balanced reform package is expensive, controversial, and largely misses the mark. Canada's current refugee determination system as established by 1989 amendments to the Immigration Act of 1976, with its focus on a high-quality oral hearing before an expert independent quasi-judicial tribunal, is considered among the best in the world. The major problems that had emerged over the years since 1989 had been some dubious decision-making attributable perhaps to patronage appointments and the patronage appointment system in general, the lack of an effective error correction mechanism, and as of late, slow processing times at the IRB. Bill C-11 does little, if anything, to remedy these problems.
The IRPA, which is our current legislation, brought in by the Liberals, sought to fix the error correction mechanism problem by instituting the RAD. Unfortunately, it was not proclaimed in force; but it can be, at any time, with or without Bill C-11. The RAD is already in our legislation. Slow processing times at the IRB were a product of the current government's failure to fill vacancies on the IRB. That problem I understand is now resolved, and the IRB has all its members. The patronage appointment issue still has not been solved.
Instead of addressing the real problems, Bill C-11 seems to be principally directed to a problem that does not really exist: namely, a flood of bogus refugee claimants clogging the system. This is not a true premise, and a false premise should not be the basis for a reform.
The 1989 amendments to the Immigration Act effectively brought an end to floods of unfounded claims that we saw prior to 1989. Today, Mexican and central European Roma claims have been identified publicly by the minister as the culprits, but these claims are not bogus. Even the Federal Court agrees.
Other problems with the bill, aside from its faulty premise, are as follows.
The reform seems dependent on ultra-fast timelines. As almost every witness has said, such timelines are unfair to refugees, and have never worked in the past, in any event. The restriction in clause 4 on access to humanitarian and compassionate relief are unfair and may violate international norms. There must be some way for refugee claimants to raise any type of humanitarian issue prior to the 12-month period, in case something arises in their country of origin, in case they have a medical problem, or in case they have a problem involving the best interests of their children who may be Canadian citizens. AQAADI's suggestion would be to give humanitarian jurisdiction to the RPD or to the RAD, or simply allow for an application for an exemption from the 12-month bar in certain cases.
The institutionalized interview process in subclause 11(2) will cause delays and prejudice to refugee claimants even if it doesn't occur within eight days, even if it occurs within a longer framework. It's not a good idea. From an efficiency standpoint, it could cause scheduling delays because counsel needs to be present and an interpreter will need to be present. Furthermore, taking and recording a prior statement will mean that these statements will be routinely used in the full hearing to discredit claimants, as has been done, not in every case, but frequently with the port of entry statements. Initial statements made by victims of traumatic experiences may be incomplete or confused. AQAADI's suggestion would be to delete this concept of a formal interview process and stick with the personal information form.
The designated country provisions in clause 12, which restrict access to the RAD, present a host of problems. Designation will presumably be based on safety, but this is not specified anywhere, nor are there any criteria provided.
The fact that classes of nationals within a country can also be designated—for example, homosexuals from Nigeria, Jews from Russia—is clearly discriminatory. It's not just a country that can be designated. There's a power to designate classes of nationals within a country and deny them an appeal. This new approach for Canada—it might exist in Europe, but it's new here—is apparently a response to a crisis with respect to bogus claims from Mexico or central European Roma. However, since there is no crisis, there is no need for this provision. Should there ever actually be a crisis, existing disincentives to filing manifestly unfounded claims or other administrative measures will be sufficient. I am referring to the credible basis provisions in subsection 107(2) of the existing IRPA, and subsection 231(2) of the regulations under IRPA. As well, groups of claims have been expedited administratively in the past within the IRB. There can be an administrative decision to expedite certain groups of claimants.
The provision is also unworkable, as it will likely be impossible to get agreement on what countries can be designated. It should be deleted from the bill.
According to clause 13, the RAD will be implemented. In addition, a power to receive new evidence has been added. The RAD could be an enhancement to the current system, especially if a completely merit-based appointment system is instituted.
8:25 p.m.
Conservative
8:25 p.m.
Member, Legislative Review Committee, Quebec Immigration Lawyers Association (AQAADI)
Yes.
On the PRRA process restrictions, there should be at least some way of seeking exemption from the 12-month bar, because there is a constitutional requirement to assess risk before removing someone under section 7 of the charter.
Finally, AQAADI objects to the fact that under clause 26 first-level decisions will be made by public servants, as they may lack the necessary independence and possibly even qualifications. The 10% minimum requirement of members that have a legal background would be deleted by the addition of clause 26.
Thank you.
8:25 p.m.
Conservative
The Chair Conservative David Tilson
Thank you, Ms. Zambelli.
Ms. Mendes has some questions for the witnesses.
8:25 p.m.
Liberal
Alexandra Mendes Liberal Brossard—La Prairie, QC
Thank you very much, Mr. Chair.
If I may, I'd like to start with our guests through video conference, Mr. Berger very specifically. This follows on what Ms. Zambelli just mentioned.
With regard to the issue you touched on of civil servants versus Governor-in-Council nominations to provide this first line of people who are going to be judging cases or giving a first impression on cases of people coming to our borders, how would you suggest this selection of people who will be determining who is a valid claimant, if you wish, should be done? How should we go about naming them and selecting them?
8:25 p.m.
Lawyer, Max Berger Professional Law Corporation, As an Individual
This has been the $64-million question for many years. What we should not have at the end of the day is the minister having the final say as to who's in and who's out in terms of selection. That simply leads to patronage. That's just politicizing the appointment process.
It should be a merit-based system. There should be a panel of experts, human rights advocates, put in place, and they should select the best people around to do this job.
What I indicated I was against was its being restricted to or primarily being civil servants. I don't think that civil servants bring to the table the wide range of experience we need for this type of decision-making. I suspect that if it's going to be civil servants, it's simply going to be the current RPOs—refugee protection officers--or tribunal officers, under a different title. I don't think that will lead to the best possible result.
8:30 p.m.
Liberal
Alexandra Mendes Liberal Brossard—La Prairie, QC
But their main function, from what I understand, is to gather information. I think Mr. Dykstra brought this point to us, that the first meeting with the officer is not going to be a decisive meeting--if I understood correctly. It's for gathering information.
8:30 p.m.
Lawyer, Max Berger Professional Law Corporation, As an Individual
We're talking about two different things here. There's the procedure after the eight days and then the procedure after the sixty days. I'm talking here about the sixty-day procedure, which the legislation tells us will be done by the first-level decision-makers, who are going to be the civil servants. That's my understanding.
8:30 p.m.
Liberal
Alexandra Mendes Liberal Brossard—La Prairie, QC
But they are going to be the same people on the eight-day one.
8:30 p.m.
Lawyer, Max Berger Professional Law Corporation, As an Individual
That's not clear to me. I'm assuming so, but that's not entirely clear to me.
8:30 p.m.
Liberal
Alexandra Mendes Liberal Brossard—La Prairie, QC
It's not clear to me either, so that's why I'm asking the question.
8:30 p.m.
Conservative
8:30 p.m.
Liberal
8:30 p.m.
Liberal
Alexandra Mendes Liberal Brossard—La Prairie, QC
Okay.
Back to the famous PIF, the personal info form, Mr. Berger, you say that the personal information form was a very useful way of gathering information in those first days following arrival, so you would eliminate the eight-day gathering time or process to keep the PIF. Is that what you were suggesting?
8:30 p.m.
Lawyer, Max Berger Professional Law Corporation, As an Individual
That's what I was suggesting. The PIF has served us well over the last 21 years. The PIF is the anchor document put before the board, which contains the claimant's history of persecution. That PIF is composed in the tranquility of the lawyer's office. It's a calm, civilized way of putting together, in a chronological order, the refugee claimant's history. What we're proposing to replace it with is this interview by someone who's meeting the claimant for the first time, and I can tell you, the story is going to come out in a jumbled and scrambled way, with no head or tail. There's not going to be any anchored document before the board. There are going to be omissions in the story. It's just a bad idea.
8:30 p.m.
Liberal
Alexandra Mendes Liberal Brossard—La Prairie, QC
There will be no formalized manner in which to present information. It would just be a jumble of odds and ends that people would think of.
8:30 p.m.
Lawyer, Max Berger Professional Law Corporation, As an Individual
It's going to come out because.... We already have experience with what's known as the POE notes, point of entry notes. Under the current system, a claimant is interviewed at the port of entry when they make a claim, or at the inland immigration office, and the officer asks a lot of questions about their claim--who are you afraid of, what happened to you, why did it happen--and the story comes out in a very incoherent manner, because the officers aren't familiar with the person's background, the claimant is nervous talking to a person in authority--
8:30 p.m.
Liberal
Alexandra Mendes Liberal Brossard—La Prairie, QC
If I may interrupt, is that, Ms. Kennedy, one of your fears when you mentioned the problem of those eight days being insufficient for a gay, lesbian, or transgendered person to present a claim?
8:30 p.m.
Executive Director, Egale Canada
Absolutely. I would completely concur with those thoughts. It's not realistic for an LGBT claimant to comply with that eight-day requirement. Most LGBT claimants file not at the port of entry, but after entry, and just for them to find their way to the inland office to file their claim to set up their welfare, their housing--there are so many things a person would have to deal with in the day-to-day lives of people. There's no way you can realistically complete that in eight days.
