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.