Citizenship and Immigration Committee on May 25th, 2010

[Hy Shelow]

I think Mr. Abraham, in his opening statement, as well as my response to Madam Chow, indicated that we would prefer to see that there is an appeal available to all asylum seekers in Canada.

The purpose of an appeal would be to correct mistakes made in the first instance. Under other countries' procedures, as well as UNHCR procedures, it wouldn't be linked in any way to the issues you've just discussed.

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

I assure you, Mr. Shelow, I was perfectly aware of the fact that, by asking you the question, I was getting you to repeat what you had already said. I did that knowingly, because I wanted it to be very clear. Obviously, we will not throw stones at anyone. Everyone around the table is trying to say that... and the UN HCR agrees with you, everyone has a significantly different interpretation. So, I just wanted to ascertain your position.

We talked earlier about pre-removal risk assessments, an ultimate procedure that occurs during the last stage, immediately prior to removal. Under this new legislation, if it is adopted as is, unsuccessful refugee claimants will no longer be able to use that procedure.

And yet, you pointed out in your presentation that between the time when a final decision is made that a person is not found to be a genuine refugee claimant, and the removal, and a number of events can occur and lead to a change in circumstances.

Therefore, what kind of events are we talking about that could change a decision? And would you be in favour of a mechanism allowing a file to be re-opened on demand—and not automatically as in the case of an appeal—with the authorization of the commission, if it appeared that a situation had clearly changed?

[Hy Shelow]

Again, these are not matters that are contained in the bill. It's hard to comment on them, since they're not the bill.

One of the issues we see regularly is that there are quite substantial changes in countries of origin that are very quick. They create what we refer to as “refugee surplus”. These are refugees who are already in a country, or individuals who may have been rejected after a process, but then something happens in their country--a fundamental political change, or some other issue--that leads to a sudden protection need.

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

My question more specifically has to do with the fact that there currently is an ipso facto appeal section. Someone appeals a decision, the appeal is granted. The case is reassessed.

Some organizations have suggested the establishment of a mechanism to reopen cases, not as a matter of right, but only if one can demonstrate that there has been a material change. Obviously, we would not want all those who have had their claims denied to request the reopening of their case.

Are you in favour of this idea of reconsidering the cases of individuals who bring some evidence that there has been a significant change in their country of origin or their personal situation?

[Abraham Abraham]

I think it's important that there is a right of appeal. Changes can happen at any time, as I mentioned in my earlier statement. It is up to us, up to the person who is interviewing, or up to the system to examine the changes that have taken place, for example, in the last five years when that country was last put on a list of safe countries. Have things changed? You cannot use it as an absolute bar, as I also said. One must look at the changes and see whether there are grounds on which the person could be given an opportunity to appeal. This is why we favour and support that there be an appeal mechanism.

This need not be a very big and formal appeal mechanism, as such. For example, if they don't have access to a second instance decision, some sort of a review mechanism could be put in place to see that all the safeguards have been taken into account before a final decision, particularly if there's been any--

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Dykstra has the final question.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, Mr. Chair. I actually have two questions, but I understand we have a few minutes left.

The first question is ostensibly based on one of the things I want to be clear on—and I know, Mr. Abraham, you did allude to this in your opening comments: why it's important to speed our system along, that the speed of the system is not to prevent factual evidence from being presented and individuals from being given proper accord in terms of being able to present their cases, but speed is of the essence because the way our process works now is just far too slow.

I just want you to elaborate on that a little bit more.

[Abraham Abraham]

I fully agree with you. While we talk about not leaving it as an open-ended timeframe, it is important that you have a timely assessment that's undertaken, but that period should allow whoever is making the assessment to have gathered all the information or data in order to make a final decision. If you speed it up, are you by any chance speeding it up because you are under pressure?

Today, we have a backlog of almost 60,000 cases. Are we speeding it up because we want to get rid of the backlog, or are we not perhaps looking at what needs to be done in order to expedite the process with the kind of support and resources that are necessary in order to make a reasonably timely decision and not to have it drag on for a year or 18 months?

Expediting does not necessarily mean there's anything wrong with it, as long as the quality of the decision is not compromised.

[Rick Dykstra, Conservative, St. Catharines, ON]

With regard to the other question that I have, one of the individuals from our committee continually references the issue of Greece and how the system works there and how he would consider Jehovah's Witnesses, for example, to be under the realm of refugee. Could you give us a quick description of the refugee process in Greece? I hate to put you on the spot, but I'm hoping that you actually do have a little bit of an update, or at least an understanding for us. Or is that an unfair question?

[Abraham Abraham]

I could give a response to you later in writing, because I'm not very—

[The Chair, Conservative, David Tilson]

You can respond, but it has absolutely nothing to do with the bill.

[Rick Dykstra, Conservative, St. Catharines, ON]

It would be great to get a response. Thank you.

[Abraham Abraham]

I could give you a response in writing.

[The Chair, Conservative, David Tilson]

I think that concludes our time, gentlemen.

Mr. Abraham and your colleagues, thank you very much for coming. You've made a great contribution to our committee in trying to improve this bill.

[Abraham Abraham]

Thank you very much, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Madame Thi Lac, on a point of order.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

The gentleman just responded that he would send written documents to Mr. Dykstra. Would it be possible for all committee members to obtain these responses, Mr. Abraham?

[Abraham Abraham]

I will address my response to the—

[The Chair, Conservative, David Tilson]

Documents for everybody, is that what you're suggesting?

What I would do is send it to the clerk, sir, and the clerk will distribute it.

[Abraham Abraham]

I was going to say that, sir.

[The Chair, Conservative, David Tilson]

That would be better, because I don't know where some of these people live either. Just send it to the clerk, and he'll find out where they go.

[Abraham Abraham]

Thank you, sir. I will do that.

[The Chair, Conservative, David Tilson]

Thank you very much.

We will suspend for a moment.

[The Chair, Conservative, David Tilson]

Ladies and gentlemen, we're back on the record. This is the final hour.

We have three groups. From the Quebec Immigration Lawyers Association we have Pia Zambelli, who is a member of the legislative review committee; by video conference from Toronto we have a lawyer, Max Berger; we have the organization Egale Canada, with Helen Kennedy, executive director, and Michael Pelz, a researcher.

Ms. Kennedy and Mr. Pelz, you have between you up to seven minutes to make a presentation. You're first.

[Helen Kennedy, Executive Director, Egale Canada]

Thank you.

Egale Canada is Canada's LGBT human rights organization advancing equality, diversity, education, and justice. There are a number of important and growing needs for protection for members of the LGBT community—the lesbian, gay, bisexual, transgendered community—given the number of countries around the world that still criminalize homosexuality and the number of countries in which members of the LGBT community are persecuted and the few countries that actually recognize claims based on sexual orientation. Canada has been unique among nations in providing protection for people from around the world on the basis of sexual orientation, and it was one of the first countries to recognize LGBT claims under the membership in a particular social group.

We have a number of concerns about this bill. The processing timelines, we believe, are unrealistic for LGBT claimants. The timelines proposed will have a dramatic, negative impact on the ability of LGBT claimants to establish their claims. LGBT claimants generally take longer to make a claim based on their sexual orientation. They are embarrassed and ashamed to describe problems associated with their sexual orientation and they require longer to establish proof of their sexual orientation.

The vast majority of LGBT claimants are not aware of their ability to file a claim based on their sexual orientation until long after their arrival in Canada. Sexual orientation as a basis for refugee status is not mentioned in the Immigration and Refugee Protection Act; it's not in the regulations; it's not on the Immigration and Refugee Board's website. The international Convention Relating to the Status of Refugees doesn't mention sexual orientation as a basis for a claim.

The coming out process also significantly impacts upon an LGBT claimant's ability to seek legal advice. It may take years before a person is comfortable enough to have his or her sexual orientation known and speak to a lawyer or counsellor about seeking help. The requirement to meet with a government official to explain the basis of the claim within eight days is, we believe, unrealistic and will inhibit many LGBT claimants from openly expressing their sexual orientation and the history of problems that they have experienced. Many LGBT claimants come from repressive, homophobic countries and will be reluctant to speak to any person in a position of power about their sexual orientation and related problems, particularly a government official. We would recommend the deletion of the eight-day interview timeframe.

The hearing after 60 days will also pose a significant obstacle for LGBT claimants to establish their sexual orientation. There's no documentary proof of sexual orientation, as there is with religion or political membership. The LGBT claimants typically establish their sexual orientation through their level of involvement in the Canadian LGBT community. The 60-day hearing will pose a significant obstacle for these claimants to establishing that they are in fact at risk. Persecution based upon sexual orientation is a hidden and under-reported form of persecution. Major human rights reports often don't report on human rights violations based on sexual orientation; therefore it takes much longer than 60 days for claimants and counsel to document risks of LGBT persecution in the particular country of origin. We would recommend the deletion of the 60-day timeframe.

Designated countries of origin likely include those in which LGBT claimants have a well-founded fear. Many countries that seem to be peaceful, stable democracies are countries in which LGBT claimants are most at risk. Jamaica and many other Caribbean islands, for example, and Hungary, and democratic countries in Africa are examples of countries that otherwise appear safe but are very dangerous for members of the LGBT community. Singapore is a peaceful democracy, but it criminalizes homosexuality. Given the under-reporting of abuse based on sexual orientation, there's no mechanism that seeks input from the LGBT community regarding the designation of countries of origin for the purpose of denying the right to an appeal. We recommend the removal of the all provisions related to the designated country list.

Let me turn to limitation on humanitarian and compassionate applications. In many cases, LGBT claimants will be found to be at risk of discrimination or hardship, but not persecution. In these cases, it is critical for LGBT claimants to have the opportunity to demonstrate that they will face severe hardship, if not persecution, and that the risk justifies their remaining in Canada on humanitarian and compassionate grounds.

While we applaud the implementation of the refugee appeal division, we feel that considering only new evidence for an appellant is not realistic. All evidence needs to be considered, especially in light of the fact that the minister is able to use any evidence in the case. We recommend that all relevant evidence should be considered at this stage.

Thank you. I'm totally open to questions, if you have any. Thank you for the opportunity to be here.