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.