Citizenship and Immigration Committee on May 27th, 2010

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

And now we have Mr. Telegdi, a candidate for the Liberal Party of Canada, here witnessing on behalf of I'm not sure whom, but I would like some clarification as to why a witness who is actually a candidate for a federal party is here on some sort of an expertise perspective, because I don't see how he could be. I certainly would like clarification as to how he made the witness list.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Mr. Chair, I believe that Mr. Telegdi is coming forward as an individual. What he is trying to do next year or next time is not relevant. He sat on this committee. He has relevant history. He was probably one of the longest-serving members, and if has something to present, what is the problem?

[The Chair, Conservative, David Tilson]

We welcome almost everyone here, sir. You're welcome to the committee.

We have four groups.

We have Mr. Raphael Girard.

We have two people from the Fédération des femmes du Québec: Ms. Alexandra Pierre, community organizer responsible for anti-racism and discrimination issues, and Nathalie Ricard, who is with the same group.

We have the Coalition des familles homoparentales du Québec.

We have the Canadian Arab Federation, represented by James Kafieh, who is legal counsel.

By teleconference, all the way from Kitchener, we have the Honourable Andrew Telegdi, a former parliamentary secretary and former chair and vice-chair of this committee.

I'd like to welcome all of you. We will start by giving each of the groups up to seven minutes to make a presentation. The Fédération des femmes du Québec is a group, so that would mean a total of seven minutes for the two of you.

We'll start with Monsieur Girard.

[Raphael Girard, As an Individual]

Thank you, Mr. Chairman.

I'll try to get through this in as short a time as possible, but I warn you that my presentation is meaty and full of precise technical terms. I've given a copy of my text to the clerk so that the interpreters can follow.

Mr. Chairman and ladies and gentlemen, 25 years ago, I led the task force that produced the existing refugee determination system for Canada. It was the first time we embedded the right to claim refugee status in Canadian law.

I can also say I don't envy the people who are going through the reform. What strikes me most about the debate surrounding Bill C-11is how little the objectives and the problems have changed, despite more than 20 years of experience with the phenomenon of refugee claims in Canada.

Looking back to 1985, the Singh decision forced the department to change the ad hoc processes it had for dealing with refugee appeals against removal. The backlog created at that time was decades long. Reform was essential.

Flora MacDonald mandated me to form a task force, and I must say that the objectives we had then and the objectives for Bill C-11 today are virtually identical. Everyone wants a rapid and fair decision-making process, early recognition of valid claims, and prompt removal of failed claimants to discourage frivolous claims by those who would exploit the determination system for other purposes.

Despite our best efforts, the system we delivered in 1989 failed. It was dysfunctional from day one. There was a conflict between the design and the law.

The design concept was based on the premise, a very important premise, that an independent tribunal should be available to those, and only those, whom Canada would have an obligation to protect if they met the definition of “convention refugee”. We rejected the idea that Canada had an obligation to facilitate claims by those seeking to come to Canada from other signatory countries such as the United States, Germany, and other western European countries whose performance in protecting refugees showed them to be in good standing.

Although provisions to achieve this were present in the bill that became law in 1989, the essential restraints on access to the independent tribunal were not enacted by the government, and the system was therefore left vulnerable to overload, despite the enormous budget of $100 million that was made available to the IRB in its first year. To compound this issue, the IRB adopted an interpretation of the convention that was and remains broader than that used in any other signatory country, leading to an acceptance rate of claims that approached and sometimes exceeded 50%, which in those days was easily double that of the next most generous country.

Since then, the system has been chronically backlogged. As a result, there have been episodes of wholesale abuse by bogus claimants.

Bill C-11 has some interesting features to expedite the process and limit appeals, but it fails to come to grips with the underlying problems that plague the existing system. The bill replaces order in council nominees with public servants at the hearing of first instance, which will make the appointment process simpler; however, the hearing format with counsel remains the same.

An additional element has been tacked on at the front end, which you talked about earlier, and the de novo is available at the back end on appeal from a refusal at the hearing of first instance, which can include a second oral hearing in some cases where credibility is an issue.

These three steps replace the single encounter the claimant now has in the current system. The Bill C-11 reforms risk making the overall process more complex, not less.

It's difficult to believe that a more complex system can be faster despite the time guillotines that are intended to be imposed. I don't know of any tribunal that isn't backlogged and that values timeliness over integrity of process.

Currently, appeals against sponsored immigrant refusals made to the IRB take up to two years to be heard. Spousal cases in this group command the highest priority in the immigration firmament. And applicants don't seek delay. They want to come to Canada and be reunited with their families.

If two years is the best the IRB can do for high-priority people who don't seek delay, is it really realistic to think that the IRB can do better with a bigger and more complex challenge with regard to people for whom delay can be a positive feature that they in fact often seek?

The underlying problem with Bill C-11 is that everyone will have a right to a hearing before an independent decision-maker. This is neither necessary nor practical. Where there is no protection issue, there should be no involvement by the IRB.

Neither the charter nor the 1951 UN convention obliges us to hear claims of refugee status. The convention only obliges member states to refrain from refoulement, which is the forceable return of refugees to a country where they face persecution. Removing people from Canada without a hearing of a claim to refugee status does not contravene the convention nor the charter if it is done in a way that does not expose them to refoulement.

For example, Bill C-11 will allow the continuation of the absurdity of the current Canadian system, which has been abused wholesale by claimants from the Czech Republic and Hungary.

[The Chair, Conservative, David Tilson]

You have one minute, sir.

[Raphael Girard]

There is no protection issue for citizens in the EU. They have the right of mobility among 27 developed countries and they have individual protections by the European Court of Human Rights.

So what do I recommend for Bill C-11?

First of all, we need to be more courageous in limiting access, starting with citizens of the EU.

Second, we need to make the interpretation of the convention used by the public servants who preside at a hearing of first instance more constructive and closer to that used by other countries.

Third, we need to enhance our efforts to sign safe third country agreements with other countries through which our refugee claim load currently passes. Otherwise, we'll continue this schizophrenic policy we now have, where we have the most open system in the world, but we also have a very active cadre of people in foreign airports interdicting passengers so they can't come here and use it.

[The Chair, Conservative, David Tilson]

Thank you for your presentation, sir.

Mesdames Ricard and Pierre, you have up to seven minutes.

[Alexandra Pierre, Community Organizer, Responsible for anti-racism and discrimination issues, Fédération des femmes du Québec]

Good afternoon. Thank you for receiving us and allowing us to make this presentation.

The Fédération des femmes du Québec, la Coalition des familles homoparentales, the Concertation des luttes contre l'exploitation sexuelle, or CLES, the Regroupement québécois des Centres d'aide et de lutte contre les agressions à caractère sexuel, or RQCALACS, and the Table des groupes de femmes de Montréal all work to promote and defend women's interests and for the recognition of lesbian, gay, bisexual and transgender people, LGBT people.

We support the objective of a faster refugee determination system, to the extent that speed does not jeopardize refugees' fundamental rights, and we welcome the introduction of an appeal division under Bill C-11. Despite this progress, we wish to express our serious concern about the rest of the bill.

As a result of the proposed amendments, certain asylum applicants will not have access to the appeal division as a result of their nationality and origin. The introduction of the term “designated country” or “safe country” violates the fundamental principles of the UN Convention relating to the Status of Refugees and the Canadian Charter of Rights and Freedoms, which clearly establish the right to equality.

Domestic abuse, crimes of honour, genital mutilation, rape and commercial sexual exploitation are all forms of violence or persecution suffered almost exclusively by women. The women from countries that might be characterized as safe are not protected from these violations of their rights. In some countries, discrimination and mistreatment are open, even legal, whereas in others, they are more concealed.

I'm going to tell you about the case of a woman whom the signatory groups to this brief have supported. That woman from Honduras was detained in an apartment by a criminal gang that accused her friend of being a police informer. In that woman's presence, the friend in question was mutilated and then decapitated. The woman was subsequently raped by the members of the criminal gang. She then had to leave her husband behind and seek asylum in Canada. She said that, since the police was corrupt, she could not inform on those police officers because otherwise she would be dead.

At her IRB hearing, the panel found that, based on the national documentation binder, Honduras was a country that cracked down on criminal gangs and enforced laws against such crimes. In spite of everything, however, the government of Honduras is still incapable of eradicating this type of sexual violence, which is quite common.

[Nathalie Ricard, Coalition des familles homoparentales du Québec, Fédération des femmes du Québec]

Good afternoon.

Thank you for allowing me to speak and for listening to me.

With regard to gender violence, I'm going to continue and talk more specifically about sexual minorities. It must also be understood that, when a country decriminalizes homosexuality, that does not necessarily mean that its social and police policies will also protect sexual minorities.

A lot of gays are collectively violated, for example, their families blamed, hurt and dishonoured, and these people won't go to the police to file a police report because, once again, there will be victimization and often blackmail.

What is reported is a lot of blackmail, the rejection of families, scorn and sexual violence. The same is true of women. For example, we have women in our association right now who come for Mexico. These women, who may at first seem entirely heterosexual, are not; they are lesbian, and people think they are heterosexual because they have children.

So that also has to be taken into consideration; that is to say that there is no protection for same-sex couples or recognition of gay parentality or maternity in a number of countries. So one of the threats these people face, and one of the reasons why they do not reveal their homosexuality, is that they can lose custody of their children. That is why it has to be taken into consideration, and it is not because a country might be considered safe—one could think of Mexico, for example—that there is any security for sexual minorities, and especially for women.

I've been working with immigrants and refugees for 20 years, and you may be certain that, when women appear before you, they definitely have a history of sexual violence that will take a lot of time and a number of meetings before it is ultimately revealed. In addition, the time frames currently granted under the bill are too short to enable a person to really prepare testimony that is meaningful and that reveals her situation.

[Alexandra Pierre]

Another problem with the bill is that women and LGBT people—we're going to call them that—from so-called safe countries also face prejudices before the board to the extent that their country is considered safe.

For us, this situation is unacceptable, and we repeat that refugee status must be based on a rigorous assessment of the person's individual situation rather than a general assessment of the country that person comes from. Subclause 11(2) of the bill would also require an interview within eight days after the asylum claim is filed and a hearing within 60 days.

To be able to testify and confide without fear for their safety or that of their family, claimants need to know the people who hear them, but also to know the system in which they have landed, their rights, the laws and the implementation of those laws.

In the case of sexual violence or of violence suffered as a result of sexual orientation or gender identity, a state of post-traumatic shock or shame may prevent people from speaking freely to their lawyers or to other key people in the asylum process. From that perspective, we consider a hearing within 60 days absolutely unrealistic.

We also feel that two months are much too short a time frame not only to gather together relevant documents to support an asylum claim, but also to find—

[The Chair, Conservative, David Tilson]

Ms. Pierre, you have less than a minute to go.

[Alexandra Pierre]

—someone who can represent the person.

We are also extremely troubled about the distinction the government draws between true refugees and false refugees. True refugees are apparently those who are sponsored and selected overseas and the false ones are apparently people who seek asylum at the border. In our view, both types of asylum claims are extremely legitimate and attention must be paid to this type of remark which can fuel xenophobia.

[The Chair, Conservative, David Tilson]

Perhaps you could wind up.

[Alexandra Pierre]

In conclusion, I would just like to tell you our recommendations. There are four of them.

We would like the reference to the interview and the bill to be deleted, along with the provisions on the designated countries of origin and the amendments prohibiting asylum claimants from filing humanitarian applications. You can see the details in our fuller brief that you will be receiving. Lastly, we would also like board members to be appointed and to be qualified candidates who could come from the public service or outside the public service.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Kafieh.

[James Kafieh, Legal Counsel, Canadian Arab Federation]

My name is James Kafieh. I'm legal counsel for the Canadian Arab Federation.

[The Chair, Conservative, David Tilson]

Thank you for coming, sir.

[James Kafieh]

The Canadian Arab Federation is the national organization serving Arab Canadians. Since 1967, we've advocated on a wide range of topics. However, our 500,000 Arab Canadians have a special interest in Bill C-11.

We come from a part of the world that is generating a lot of refugees and we have a special interest in this legislation. There are six areas that I want to touch on with regard to the specific concerns we have about Bill C-11.

We would point out that not all aspects of the proposed changes are negative. For example, the Canadian Arab Federation applauds the inclusion of provisions for appeals on the basis of merit and also more timely hearings for refugees.

However, there are also very disturbing changes embedded in the legislation. As the lives of refugees are at stake, these aspects require special attention today.

Of the six points to touch on, the first is with regard to the interview at the Immigration and Refugee Board. A fair and expeditious process for assessing the refugee claimants is a common goal; however, “fair” and “expeditious” are not alternative choices.

The requirement for refugee claimants to give details of their claim at an information gathering interview within eight days of a claim being referred to the Immigration and Refugee Board is insufficient and prejudicial to legitimate claimants.

Refugees undergo traumatic and gruelling processes to arrive in Canada. They will understandably require more time than is contemplated in the legislation just to recover from their odyssey. In addition, they legitimately need to consult legal counsel prior to presenting their narrative. Legal aid certificates often require longer than the eight-day period allotted just to be issued.

The initial interview requirement undermines due process, so we say that the initial interview should be deleted from the legislation.

The second point is with regard to the hearing date scheduling. The present scheduling of hearings is profoundly problematic. Refugee claimants should not have to wait years to have their claim adjudicated; however, many refugees will necessarily require more than the 60 days allotted under the legislated to prepare their case.

Evidence of persecution may be difficult to obtain from dysfunctional parts of the world. States that generate larger numbers of refugees are often the very states that are most oppressive and chaotic. In addition, even evidence gathered in Canada, such as medical or psychological assessments and reports, may take much longer to be produced than the 60 days being contemplated in the legislation.

The right to an expeditious hearing should be clearly stated in the legislation. However, hearings should generally be scheduled on the basis of when they are ready to proceed, with long-term time limits setting out maximum time limits.

The third item is with regard to the first instance decision-makers. The move away from an Immigration and Refugee Board that is uploaded with political appointees is a welcome measure; however, limiting the decision-makers of first instance to civil servants will undermine the objectivity of the refugee process. A process that handles appointments to the Immigration and Refugee Board without political interference or partisan consideration would be a welcome measure. Decision-makers should be appointed for fixed terms and qualified candidates, both from inside and from outside the civil service, should be considered for this role.

Number four is with regard to designated countries of origin. Provisions under the legislation that would enable the minister to designate countries of origin would unnecessarily politicize and undermine the integrity of the refugee determination process. Such determinations also violate international law by discriminating on the basis of country of origin.

[The Chair, Conservative, David Tilson]

Sir, I'm sorry to interrupt you. This is being translated into French, and you're going a bit too fast.

[James Kafieh]

I will try to slow it down a little bit. I was conscious of the time limits.

[The Chair, Conservative, David Tilson]

Talk like I do. People say I talk too slowly.

[Voices]

Oh, oh!

[James Kafieh]

I will slow it down a little bit.

[The Chair, Conservative, David Tilson]

Thank you, sir.

[James Kafieh]

Such determinations also violate international law by discriminating on the basis of country of origin.

In addition, they carry with them the real spectre of endangering legitimate refugees by leaving undefined the terms of “safe countries of origin” and “safe” itself . Indeed, the criteria on which a country of origin could be listed as safe by the minister are non-existent. We understood from the earlier witnesses that this might be something to be defined very shortly through the regulations, but it is still not available to us at present.

Ultimately, the provision establishes a two-tiered refugee determination process. The designated countries of origin provision should be deleted from the legislation.

Fifth, the establishment of a refugee appeal division is a welcome measure. A genuine appeal process that allows for the inclusion of new evidence is long overdue. Indeed, the primary concern lies in the definition of “new” evidence. Historically, evidence that could be added to the record has been limited to “evidence not reasonably available” at the time of the hearing or initial adjudication.

This can be remedied by generalizing the concept of what new evidence can be added to the record on appeal. To achieve this objective, the legislation should be changed to make clear that all relevant additional evidence may be presented by a refugee claimant at an appeal.

Sixth, the barring of anyone from a pre-removal risk assessment unnecessarily creates a risk to refugee claimants. The Immigration and Refugee Board--not the office of the minister--is the correct venue for determinations as to whether or not a person can be removed without risk.

The legislation does not contemplate changing circumstances that could legitimately raise new issues of risk beyond those that existed at the time of initial adjudication. The pre-removal risk assessment restrictions should be removed and authority for administration of this provision should be placed under the jurisdiction of the Immigration and Refugee Board.

I should say finally, regarding the humanitarian and compassionate applications, that definitions of who is a refugee are narrowly defined and restricted in international and domestic law. Refugee claimant cases and situations are usually complex. There is often no simple way to compartmentalize legitimate refugees from persons who may also have legitimate cases that raise genuine humanitarian and compassionate considerations.

For example, a legitimate refugee claimant case may also independently raise issues of what is in the best interests of a child. Such a consideration would not be relevant to a refugee adjudication, but would be central to a humanitarian and compassionate application.

The arbitrary barring of refugee claimants from also accessing the humanitarian and compassionate application process will undermine Canadian values and law. The provisions in the legislation that bar access to humanitarian and compassionate applications for refugee claimants should be deleted and the administration of these applications should be placed under the jurisdiction of the Immigration and Refugee Board.

Subject to your questions, that is the formal submission of the Canadian Arab Federation.