Citizenship and Immigration Committee on May 25th, 2010

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

Generally speaking, the issue of designated countries is one of particular concern. In your view, does the fact that files are no longer processed on an individual basis, but rather collectively, by country, pose a problem? It appears that you seem to be ready to live with that. All the same, what do you think about the committee trying to come up with a mechanism that would help establish priorities, for reasons of system effectiveness, based on a personal assessment of fraud risk or ill-intentioned use of the system? Would that not be preferable to a filter that only takes into consideration the country of origin?

[Abraham Abraham]

Mr. Chairman, as I said earlier, it should not be an absolute bar, and it should not be used as a tool in order to eliminate. It should be used more in order to expedite, perhaps, the processing of a first instance claim, because the person is deemed to be from a democratic or free country where there would not necessarily be any particular reason, as a safe country, to have any claims that could support such an effective claim.

I think this is why you need to look at the individual person's case. I have provided three scenarios. It's like a checklist that you need to carry out a personal interview. You need to find out all of the aspects related to that person's individual situation and consider it--and not as a country. I mean, we have so many democratic countries in the world. I remember that when my High Commissioner came to Ottawa recently this was a question asked of him. He gave a very simple reason. He gave a very simple example.

He said to take Mali as an example. It is a democratic country, but a country where you have female genital mutilation that is practised fairly widely. Now, if you have a woman who comes here from Mali, you will not be in a position to easily say, “Look, you're from Mali, there should be no reason for you to claim persecution, so I'm sorry, that's it”.

That's why I talked about the sensitivities of these cases, where an individual person may have, by his or her own right, a reason to claim persecution and who would be expressing fear about being returned.

The other thing is that being returned from a safe country is also not a very easy thing. You go back, and where the decision was wrong in the first place, the person could be found to be in a much more difficult position and could already be what one would refer to as a réfugié sur place.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Ms. Chow.

[Olivia Chow, NDP, Trinity—Spadina, ON]

On the same note, every refugee should have the same right to an appeal. Under this law that we are debating now, refugees from certain “safe” countries will not have that right to an appeal. Do you support treating refugees from one type of country differently than another country, or do you believe that every refugee should have the same treatment, no matter where they come from? I'm not talking about expediting—expediting is the positive side; this one is the negative side. If you are from a safe country, you get no appeal.

Do you support that or not? Yes or no, because I'm not clear as to whether you support this element or not. You're saying safe countries is possible, but I'm also hearing that you want every refugee's claim to be determined individually. If that's the case, if you're from a safe country, you would not get an appeal.

[Abraham Abraham]

I'll answer the question, and then I will also defer part of it to my colleague, who might wish to add to it.

There is no way in which you can treat one refugee different from another. It is not possible. You cannot have a discriminatory policy for determining refugee status, because as I said earlier, refugee status determination comes from the right of an individual to be able to seek asylum. And therefore he or she has to be dealt with on that individual basis to find out what precisely is the claim the person is making. There cannot be two different systems. But as I said, a safe country for us would be a country where procedurally you may want to be expediting, but there have to be the checks and balances I referred to in my statement that have to be put into effect so that at the end of the day you are actually treating everyone alike.

[Olivia Chow, NDP, Trinity—Spadina, ON]

So just let me be clear—

[The Chair, Conservative, David Tilson]

I think Mr. Abraham wanted Mr. Shelow to elaborate.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Can I just be clear on this one? Then what you're saying is that it's okay if people are from Congo, for example, where there is a big civil war going on and it's obviously not safe. Therefore those cases from Congo should be expedited. But the reverse is not necessarily true. If you're a gay man from Ghana, for example, or Iran, where that's punishable by death, if you're from those countries, even though it's democratic, it's not necessarily safe and therefore you should not have your right for an appeal denied.

Am I clear?

[Abraham Abraham]

I think you're quite clear, but I think I'll let my colleague here answer that.

[Hy Shelow]

I think UNHCR has been quite clear that we believe that all refugees should have access to an appeal on the merits, both as to law and fact. That basically stems from Canada's convention obligations, which include reference to the non-discrimination clauses in the 1951 convention relating to the status of refugees, both article 3 and article 8, but particularly article 3. Very briefly, since it's a brief article, I'll read it to you: “The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin”.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Thank you. That actually is extremely clear.

In your response to my Liberal friends, in that discussion, I heard that it's fine to have safe countries, but under the safe countries in this law, you will not have a right to appeal, which then, Mr. Shelow, is really in contravention of the article you've just read out. I thank you for that clarification, because I'm now understanding it.

[Hy Shelow]

I believe that in your national legislation you're trying to link two ideas that are not necessarily linked in the convention. We do support the efficacy of procedures. We do support the use of, for instance, safe country lists—or we don't contradict it. Many states have decided to create these lists, but they're used as a procedural tool to address a large group of people who have similar backgrounds, coming from places that are generally safe. It allows the decision-maker, or the assessor, to ask a much simpler line of questions, such as “why are you different from the vast majority of other people who come from your country of origin?”, as opposed to having to get into great detail in terms of background information and background questioning.

[Olivia Chow, NDP, Trinity—Spadina, ON]

But they shouldn't be denied the right to an appeal, even if they're from one of the safe countries.

[Hy Shelow]

No, madam. I think we've been quite clear on that.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Thank you very much.

[The Chair, Conservative, David Tilson]

Mr. Dykstra.

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

Thank you to all three of you for being here this evening.

I have about six or seven questions, so I'm going to jump right in.

To follow up on that, does the agency consider that the reforms proposed in the bill are in line with Canada's international obligations for refugees?

[Abraham Abraham]

My response is that there is nothing in the bill that is contrary to Canada's international obligations.

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

Thank you.

I just want to be clear when it comes to the issue of the safe country of origin concept. When this is used to fast-track certain claims, as long as—I think I pointed this out—the designation process is rigorous and transparent, your agency does not oppose the safe country of origin concept.

[Abraham Abraham]

No, we do not oppose the concept of safe country of origin. As I said in my statement, there are countries that have developed lists of safe countries of origin.

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

To follow up on that, has the UNHCR had a role in the designation processes in any of those countries? If the answer is yes, what would that role be?

[Abraham Abraham]

I know the answer, but I will defer to my colleague here.

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

That's not a problem, Mr. Abraham.

[Hy Shelow]

The answer is yes, we are engaged. It's more a question of how we're engaged. To use an example, in the Canadian context, with regard to your temporary suspension of removals list, every time a country comes up for renewal in your examination of whether it should be retained on the temporary suspension of removals list, UNHCR is asked to provide comments regarding objective criteria relating to the list, relating to country conditions.

I suspect it might be something different from what you're suggesting, which would be that UNHCR sit on some sort of panel. As Mr. Abraham indicated earlier, we would generally prefer not to do that.

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

One of the issues that have arisen for us, which we are trying to figure out how to address, is the whole concept of opening up the IRB appointments process, so that we would actually have the refugee protection division filled with public service decision-makers, instead of using the current appointment process that we have. Does that raise any concerns from your perspective, from an international asylum perspective?