Citizenship and Immigration Committee on May 27th, 2010

[Peter MacDougall]

It is a way to address spikes in claims and to deter future spikes in claims.

[Denis Coderre, Liberal, Bourassa, QC]

Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur St-Cyr.

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

Thank you, Mr. Chairman.

Thank you, everyone.

I have a number of questions, but I'm going to start by making two comments on your presentation. I think some points need clarifying.

You talked about the high commissioner's position that it may be appropriate to prepare a list of safe countries. That's true; he came and told us that last week. What he especially told us is that that list could be used for procedural purposes, but definitely not to reduce the rights and privileges of people from countries appearing on the list. My colleague Ms. Chow asked the question, I asked it in turn, and the High Commissioner clearly said it in his statement. So we should back off a bit when we try to give this act the moral approval of the UN High Commissioner for Refugees. This bill doesn't just create a list—the principle of which the High Commissioner supports—but it also provides that the people affected by the list have fewer rights than those who are not. There's quite a gap between the two.

A second remark somewhat surprised me: you said that people from countries on the list would enjoy the same protection as that currently provided. That's not true. Of course, they don't currently have access to the Refugee Appeal Division, but they nevertheless have the opportunity to file an application on humanitarian and compassionate grounds, just as they have access to the pre-removal risk assessment and to the temporary resident permit, all things to which they will no longer have access under this new act. In addition, they will no longer appear before a board member, with all the independence that entails, but simply before officials. Those people will really experience a decline relative to the treatment currently provided.

That being established, I wanted to ask you somewhat the same question as I asked you the last time, when the minister appeared before us. I asked you why the minister was depriving himself of his right of appeal in the case of nationals from a country appearing on the list. That seems contradictory to me. By putting a country on the list, the minister declares that it is not very likely that the people from that country are real refugees. However, if an official rules that a person from that country is a real refugee, even if it's not very likely, the minister, under the bill, specifically waives that power to appeal.

Why is this contradiction in the bill?

[Peter MacDougall]

I'll ask my colleague Ms. Irish to respond to the first two questions and Mr. Butt to the appeal question.

[Jennifer Irish, Director, Asylum Policy Program Development, Department of Citizenship and Immigration]

Thank you.

With respect to the first question regarding the UNHCR guidelines for a safe country of origin, the UNHCR supports—

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

I'm going to stop you. That was just a comment. I simply wanted to put things in perspective, but that's not my question; it was a comment.

My question is this: why is the minister depriving himself of the right to appeal a decision in favour of a refugee claimant, where that claimant comes from a country where it is highly unlikely that he would be a genuine candidate for that status?

[Jennifer Irish]

We'll do the third question first.

[John Butt, Manager, Program Development, Department of Citizenship and Immigration]

Basically it's a question of treating both parties equitably and equally with respect to determinations before the board. The minister, in his legislative package, is proposing taking away the opportunity for an appeal to the refugee appeal division by the claimant in that situation, and, equally, he is proposing taking away any opportunity for him as minister to deal with those cases.

It could be said that he has reason to have faith in the determination capacities of the refugee protection division members, in the public servants who will be appointed to that job.

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

So what the bill suggests is that we are more prepared to accept an error in the case of people from safe countries, if that enables us to speed up the process.

[John Butt]

No, I think that would be a misunderstanding. The minister does retain the right to seek a leave for judicial review before the Federal Court with respect to decisions of the refugee protection division—

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

But he nevertheless waives his right to appeal on the merits because, in Federal Court, he could appeal on procedural grounds, but not on the basis of the person's credibility, for example. So he is prepared to admit that errors will be made from time to time, if that can accelerate the process. That's what's provided for in the bill.

[John Butt]

It is true that the Federal Court would not be able to substitute its findings of fact for those of the tribunal, but the Federal Court can determine whether or not the determinations made by the tribunal are reasonable on the basis of the evidence heard by the tribunal. So the minister is not depriving himself completely of the opportunity to correct errors of a fundamental nature made by the refugee protection division members.

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

In this committee, we haven't talked a lot about all the proposed transition measures. The bill as a whole constitutes a kind of trade-off. We're being offered the Refugee Appeal Division, but, in exchange, they want to apply a whole series of restrictions.

Under the bill presented to us, could people become subject to those restrictions before they have had recourse to the Refugee Appeal Division?

[John Butt]

With respect to access to pre-removal risk assessment in particular, the transition takes place at one point: when the provision limits access to a pre-removal risk assessment for 12 months after the RAD decision, the person will have had the opportunity to appeal the refugee protection division decision to the RAD. So on those, certainly, the transition is going to be seamless, if you like.

With respect to other limitations that in the legislation, there is a proposal in the coming into force provision of the legislation for the humanitarian and compassionate consideration changes to come into effect on royal assent, given that there are no infrastructure needs that have to be met for that to happen. Whereas the changes to the asylum system will come in later, when all of the infrastructure, the locations, the hiring, and the rules and regulations are in place.

So there is a gap there, but there are transitional provisions that provide the opportunity for those whose claims are rejected during that interim period to have access to agency consideration thereafter. There is also a provision for those whose claims are still pending upon the coming into force of the changes to the asylum system to have access to the current processing.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Butt.

Ms. Chow, you have up to seven minutes.

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

I didn't quite understand that. After the refugee board members become appeal division members, they will do the appeals, so you could set up the appeal division quickly and have it going. Why do you need to take extra time? Why can't you implement everything at the same time, especially that piece first? Why not have the appeal division set up? In the meantime, you are hiring extra workers to process the claims up front. Why would you do the implementation on a different timeline?

[Peter MacDougall]

Establishing the refugee appeal division is not as simple as moving people from A to B. First of all, the refugee appeal division will be Governor in Council appointees. That's a process--

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

But we already have them.

[Peter MacDougall]

They're appointed to the refugee protection division. They're not appointed to the--

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

So what do you plan to do with these board members right now?

[Peter MacDougall]

I think that's a question best addressed to the IRB.

But there's a more important question about setting up a refugee appeal division. You can't set it up overnight. It's a new instrument. The IRB--

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

So you're not transferring those folks to the other...?

[Peter MacDougall]

On the staffing of the IRB and the refugee protection division, those questions are best addressed to the IRB, since they're responsible.

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

Let me ask other questions, if that's the case.