Citizenship and Immigration Committee on May 25th, 2010

[The Chair, Conservative, David Tilson]

Very briefly, because we're out of time.

[Jordan Pachciarz Cohen]

Sure, absolutely.

I am in agreement that we need to improve the bill. There are a lot of positive aspects in the bill, and I think we share a common concern in creating a faster system. Many refugee claimants don't want to be waiting months, a year, a year and a half, or two years to get an answer. Creating a faster system benefits everybody.

But there is such a thing as too fast, and it could lead to more costs, because if you're not creating a high first-level decision-making system then a lot more decisions are going to be overturned on appeal or go to appeal, and it's going to make it more costly. Also at the same level, if you're setting dates for refugee hearings too early and evidence isn't gathered in time and you have to wait for more evidence, you're wasting the time of the IRB.

I feel that the system being proposed is going to be more costly if you just schedule hearing dates that are inevitably going to be postponed because there is not enough time to translate documents, gather documents from overseas, and prepare the case properly. Enough money has to go into the system in order to speed it up with--

[The Chair, Conservative, David Tilson]

Thank you, sir.

We now are out of time. We have another group of witnesses to come on after you.

I want to thank the two of you and Mr. Van Kessel for coming here today and giving us your thoughts on this bill. Thank you very much.

[Jordan Pachciarz Cohen]

Thank you, Chairman.

Thank you to the committee.

[The Chair, Conservative, David Tilson]

This meeting will be suspended for a couple of minutes.

Again, thanks to both of you.

[The Chair, Conservative, David Tilson]

We're going to start again, ladies and gentlemen.

We have with us the Office of the United Nations High Commissioner for Refugees and Mr. Abraham Abraham, its representative in Canada. We also have with us Mr. Michael Casasola, a resettlement officer. One other gentleman will be here soon.

You can make a few comments, sir, about your thoughts on Bill C-11. We'd appreciate hearing them.

Mr. Abraham.

[Abraham Abraham, Representative in Canada, Office of the United Nations High Commissioner for Refugees]

Thank you, sir.

I'll go straight into my presentation, which I'd like to give in the interests of time.

Chairman Tilson, honourable committee members, ladies and gentlemen, the UNHCR appreciates the opportunity to provide comments relating to Bill C-11.

The Canadian refugee status determination procedure is one of the very few that the UNHCR holds up as an example to other countries. The necessity to provide fair and efficient refugee status determination procedures for refugee claimants stems from the right to seek and enjoy asylum as guaranteed under article 14 of the Universal Declaration of Human Rights, the responsibilities derived from the 1951 United Nations Convention relating to the Status of Refugees and its 1967 protocol, from international and regional human rights instruments, as well as relevant executive committee conclusions.

As underscored by the UN General Assembly and the UNHCR's executive committee, in which Canada plays a significant role, physical access of asylum seekers to the territory of the state where they are seeking admission as refugees and access to procedures where the validity of their refugee claims can be assessed are essential pre-conditions of international refugee protection.

I would like to briefly review the various proposed changes to the Immigration and Refugee Protection Act.

Regarding time limits, the bill provides for expedited timeframes, including the referral of a refugee claimant to an interview with an Immigration and Refugee Board official. While not specified in the bill, we are informed that the planned change is intended to include a data-gathering period of eight days, which replaces the personal information form process, schedule a hearing date, and complete first instance refugee status determination before a civil servant within 60 days.

The UNHCR advocates for fair and efficient refugee status determination procedures, including timely processing of asylum claims. Rapid processing should not, however, compromise fairness. It is important that a substantive written report be made of every personal interview, containing essential information regarding the application as presented by the asylum seeker. Based on the best state practice, the asylum seeker should have access to the report and whose approval is sought regarding the contents. Procedural guarantees for applicants, including access to information about the procedure and the assistance of interpreters, should be a right. Time limits should not unduly impact on asylum seekers' right to counsel and ability to collect and review information prior to hearings. Excessively short and tight deadlines can impinge on fairness. Best state practice ensures that the reasons for not granting refugee status are in fact and in law stated in the decision. This should be shared with the applicant to allow time to decide whether to appeal, including time to prepare and lodge an appeal.

In the UNHCR's view, it is important that decisions are properly substantiated so that the applicant can appeal meaningfully from a negative decision.

Regarding the use of Governor-in-Council appointees in first instance decision-making, refugee status determination undertaken by independent decision-makers is fundamental to the fair assessment of asylum claims. This should be carried out by staff with specialized skills and knowledge of refugee and asylum matters, who are familiar with the use of interpreters and appropriate cross-cultural interviewing techniques. Wherever possible this should be undertaken by a single central authority. The central refugee authority should also include decision-makers with training in the treatment of applications by individuals with differentiated needs, including women, children, applicants who are victims of sexual abuse, torture, or other traumatizing events, or individuals with mental or physical impairments that may negatively impact their ability to articulate a claim for asylum.

Regarding the implementation of the refugee appeal division, the UNHCR warmly welcomes the implementation of the refugee appeal division. In most countries that institute individualized refugee status determination procedures, claimants have the right to an appeal before an independent and impartial tribunal or body. This supports the right to an effective remedy in law. Such an appeal instance should have the jurisdiction to review questions both of fact and of law.

UNHCR recommends that the refugee appeal division should be available to all claimants, including those from “designated” or “safe” countries of origin. Instituting such an appeal mechanism will enhance Canada as a model. At the core of the refugee convention lies the principle of non-refoulement, whereby those with protection needs cannot be returned to a place where they will be at risk of human rights violations, persecution, or even loss of lives. The purpose of an appeals mechanism is to ensure that errors of fact or law in the first-instance decision-making can be corrected.

With regard to designated countries, the so-called “safe country of origin” list, UNHCR does not oppose the introduction of a “designated” or “safe country or origin” list as long as this is used as a procedural tool to prioritize or accelerate examination of applications in carefully circumscribed situations, and not as an absolute bar.

The safe country of origin concept is a presumption that certain countries can be designated as generally safe for their nationals insofar as it can be shown that there is generally and consistently no persecution, no torture, no inhuman or degrading treatment or punishment, and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

In such situations, it is critical that each application involves a personal interview and is examined fully and individually on its merits in accordance with certain procedural safeguards; each applicant is given an effective opportunity to rebut the presumption of safety of the country of origin in his or her individual circumstances; and the burden of proof on the applicant is not increased, and applicants have the right to an effective remedy in case of a negative decision.

If the safe country of origin concept is employed, there must be clear and objective benchmarks for the assessment of general safety and mechanisms, including review of changes, both gradual and sudden, in any given country.

Separated and unaccompanied children require special procedural safeguards, including the application of the principle of “the best interests of the child”, in accordance with the 1989 Convention on the Rights of the Child.

It may be that despite general conditions of safety, for some groups or relating to some forms of persecution, the country may remain unsafe. It is UNHCR's view that legislation should assure greater access to assessment mechanisms for those with heightened risk profiles.

A country cannot be considered safe if it is so only for part of its geographic territory. UNHCR emphasizes that the designation of a safe part of a country does not necessarily represent a relevant or reasonable internal flight alternative.

With regard to removal and to the one-year bar on access to PRRA and humanitarian and compassionate review subsequent to a negative final determination by the IRB, UNHCR guidance is that an asylum seeker should have access to a first instance decision, followed by an appeal in case of a negative decision. As good practice, there should be a mechanism for addressing protection gaps that may arise subsequent to IRB decision-making whereby individuals in need of and deserving of recognition as refugees, who are nonetheless not recognized through regular processing, can be protected.

UNHCR also notes that effective return policies and practices are essential to maintain the integrity of the refugee status determination procedures and asylum space and that it is appropriate for states to remove persons not to be in need of protection where they have had access to full and fair procedures.

With regard to assisted voluntary return, UNHCR supports the proposed assisted voluntary return program. UNHCR considers that sensitive counselling at all stages of the asylum process is necessary, including for those subject to removal procedures.

Chairman Tilson, honourable committee members, ladies and gentlemen, I thank you.

[The Chair, Conservative, David Tilson]

Thank you, sir. You were ten minutes, right on the button. It was well timed. We appreciate your contribution this evening.

Mr. Bevilacqua has some questions for you.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Thank you very much.

I think there are common themes being expressed throughout our hearings. We obviously benefit from them, because they allow committee members to focus on some of the flaws or some of the concerns that exist.

This is a question that I asked individual witnesses who appeared prior to this panel. It speaks to whether this bill has the foundation to move forward. By that, I mean do we have what it takes or at least the framework to improve on the present system?

Secondly, during a time of fiscal restraint—I hoped there would actually be more, but there isn't more, because we seem to be going into a deficit that will have repercussions in the future—is it important for those of us who believe in improving the status quo, as it relates to the refugee determination system and the form, to understand the importance and perhaps gain a greater appreciation of what half a billion dollars in investment in this area would mean during these periods?

[Abraham Abraham]

Thank you, sir, for that question.

We have had and continue to have discussions with the Minister of Citizenship and Immigration, where we have very openly discussed the problems and issues that we confront today. There's no doubt that Canada faces enormous challenges with regard to its refugee status determination system. We understand there is a need to change certain things.

As far as UNHCR is concerned, we are basically here to support and advise the Government of Canada in a supervisory role to ensure that refugees are protected. Clearly, whenever an attempt is made, as we see now, an attempt to try to improve or change the areas that require improvement, we support it. We feel there is definitely room to improve the system. On our side, we are willing to provide whatever support possible, no matter what the constraints are.

At the end of the day, we must remember that we are dealing with human lives and people who are fleeing persecution. We also clearly understand there may be people who take advantage of the system as well.

UNHCR has always advocated for a very strong front-end procedure and a very strong end procedure, which is basically the removal of people. I don't think these two areas—a front-end procedure that is robust and strong and an end procedure that literally removes people who are not in need of protection—need to be addressed. To that extent, the bill provides elements to that effect, and we hope this can go forward.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

There's a lot of discussion about designation of country of origin. Some people refer to a “safe country”, and some people wrongly refer to a “third country of origin”. The point I'm making here is that as a concept, you don't have a problem with the designation of country of origin.

[Abraham Abraham]

This is not new at all. Several countries have designated lists. We also have to remember that a designated list does not remain static. There are changes that take place.

There have to be the types of mechanisms and safeguards that are necessary to ensure that nothing has changed in the country between the time the determination takes place and the time the person is removed. There has to be a mechanism in place to track these things. It cannot be an absolute decision where you have x number of countries and anyone from those countries will be dealt with differently.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Can I give you a hypothetical situation? Let us say that we were to create an advisory panel to the minister and this advisory panel would request your participation in it. You're a respected organization. You know that; I don't think I need to tell you that. Your input is extremely important, and you would be a very important member of that advisory panel that would recommend to the minister which countries should be in, which countries should be out, whatever the case, however it's structured. This is just hypothetically speaking.

What would you say to that? Would you participate?

[Abraham Abraham]

I don't see any difficulty in UNHCR's participating in such an advisory panel, but I would like to make sure that everyone understands that UNHCR is not here to be part of creating that list. Because we, as a United Nations organization, and more as a humanitarian organization, cannot be seen as taking sides with one country or another. So if we are on a panel, we will be providing an objective and constructive analysis of the situation in that particular country we are talking about for the Government of Canada to take the decision whether to include or not to include a country.

[The Chair, Conservative, David Tilson]

Thank you.

Your time is up, Mr. Bevilacqua. Sorry.

Monsieur St-Cyr.

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

I would like to thank you for appearing before us.

You do a lot of work with refugees, naturally, that is your job. Our committee has heard a number of people talk about the whole issue of initial timeframes. For example, we have heard about the proposed eight-day period for the interview. The government claims that a legitimate person, i.e., an actual victim of persecution, could tell his or her story rather quickly, within eight days. The government does not want to give people too much time to make up a story. Conversely, other groups have told us that, in many cases, the people who have been the most persecuted, who are more traumatized, are the least able, psychologically speaking, to tell their stories within an eight-day period.

You yourselves work with refugees. Do you believe that conducting interviews as quickly as possible is the best way to get to the truth? Are you not concerned that, on the contrary, the people who are the most traumatized are placed at a disadvantage with such a speedy process?

[Abraham Abraham]

Please allow me to answer in English. It will be easier for me to answer those technical questions.

We are very much aware of the importance of time limitations, and you obviously cannot have an open-ended time for assessing a claim and coming up with a final decision. But at the same time, we would like to caution against the danger of reducing the time, which might compromise the quality of the decision. We would like to make sure that all the aspects and all the corroboration of information and data and all of that is well carried out and analyzed, so that we have all the elements necessary to deal with a decision that would end up being correct, as opposed to the dangers associated with a wrong decision, which could even lead to a person's being returned and therefore having other difficulties.

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

I understand the general principle, but I would like to know more about your real life experience with refugees.

Would it not be possible, or even likely, that people who have lived through extremely traumatic experiences, such as their families being massacred or themselves being raped, need one, two, three or even four weeks before agreeing to tell their stories, even to people they feel they can trust, like yourselves?

[Abraham Abraham]

Allow me, Mr. Chair, to ask my colleague to provide you with a more adequate response.

[The Chair, Conservative, David Tilson]

Gentlemen, I never introduced Mr. Hy Shelow, who is the senior protection officer.

Proceed, sir.

[Hy Shelow, Senior Protection Officer, Office of the United Nations High Commissioner for Refugees]

Thank you, Mr. Chairman.

Thank you, members.

It is very difficult to answer a question like that until we understand more clearly what would be entailed in the collection of information during those eight days. The UNHCR conducts refugee status determination in 50 countries worldwide annually with hundreds of thousands and sometimes millions of people.

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

Allow me to interject. If I understand correctly, you do not know exactly what the content of that meeting will be. Let us put that meeting aside.

When you meet with your refugees, could it be that people who have experienced traumatic events need more than a week, perhaps two or three, before they even agree to tell you their stories?

[Hy Shelow]

Undoubtedly.

Undoubtedly, some people who have been traumatized are never able to articulate effectively, either because of mental health problems or because the traumatic experience was so difficult they don't want to talk to people about it. A classic example would be the rape victim who is very uncomfortable about talking to an individual about these issues.

If the eight days initially is simply a matter of collecting biographical data--a person's name, where they come from, etc.--that is much different from the eight days including a substantive questioning series about matters that would go to the substance of a claim.

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

In your presentation, you said that asylum seekers should have access to their reports, to the information that was gathered during their interviews. I imagine that is because you assume that, in those difficult times, following a traumatic event, people might have a hard time expressing themselves, making themselves understood and ensuring that their stories are properly reported. Was that the objective of that request?

[Abraham Abraham]

This is quite possible. This is why it's important that we gather and collect the information in all its detail, so that we are sure of the decision we would have to be making.