Citizenship and Immigration Committee on May 31st, 2010

[The Chair, Conservative, David Tilson]

Good evening. This is the Standing Committee on Citizenship and Immigration, meeting number 21, Monday, May 31, 2010. This is a three-hour session.

Pursuant to the order of reference of Thursday, April 29, 2010, we are considering Bill C-11, an act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.

I'm sorry for the delay, ladies and gentlemen.

We have three groups of witnesses. The first group is the Centre justice et foi, Elisabeth Garant and Louise Dionne. Welcome, ladies, to the committee. Thank you for coming.

We have the Canadian Association of Professional Immigration Consultants, Philip Mooney, the past president, and Timothy Morson, director of policy and certified Canadian immigration consultant.

By teleconference from Washington, we have a lawyer by the name of Howard Anglin. Mr. Anglin, this isn't televised; it's via telephone. As you can hear, we're having technical difficulties and we hope we can pull this off with you.

[Howard Anglin, Lawyer, As an Individual]

I hope so too.

[The Chair, Conservative, David Tilson]

We'll do our best.

Each group will have up to five minutes to make a presentation to the committee. We'll start with either Ms. Garant or Ms. Dionne.

Welcome again, ladies.

[Terence Young, Conservative, Oakville, ON]

Mr. Chair, on a point of order, is it a verbal presentation or do we have a written copy as well?

[The Chair, Conservative, David Tilson]

If you don't have it in front of you, it's oral.

[Elisabeth Garant, Director, Centre justice et foi]

We will basing ourselves on the brief that you received. We will be providing you with only the main excerpts from it.

Thank you for receiving us here, this evening. I would simply point out that the Centre justice et foi is a social analysis centre that is part of the Society of Jesus, better known as the Jesuit religious community. The centre's objective is to participate in building a society based on justice by promoting active citizenship for all, and particularly we encourage the establishment of a welcoming society for newcomers.

Since 1985, through the Vivre ensemble sector under the responsibility of Louise Dionne, we have been working on issues pertaining to immigration, refugee protection and the reception and integration of newcomers.

Before discussing the details of Bill C-11, which my colleague will be dealing with, I would simply like to point out some general aspects pertaining to the context of this bill. First of all, over the past few decades, we have seen awareness and respect for rights and democracy gain significant ground, making it increasingly more intolerable to accept situations in the world where these conditions do not exist.

Hence we have seen the types of persecution defined by the Geneva Convention applying to more and more individuals, groups and regions throughout the world and an increasing number of individuals are forced to apply for asylum. This situation will not change in the years to come. Regardless of how we try to restrict, monitor or turn away people requiring protection, they will find other ways of coming. It is absolutely essential that we have a bill, a reform, an immigration act, and in particular, refugee protection, that are able to meet our challenges.

I would like to point out that this trend that we see in the bill is a repetition of many aspects and realities that we see in other North American and European countries, at least in the northern hemisphere. Well ahead of us, these countries implemented certain measures such as their visa policies, accelerated asylum review procedures, sanctions against carriers and other measures.

Now that these measures have been introduced, particularly the measure pertaining to the accelerated asylum application review procedure, which this bill deals with specifically, it seems to me that we have to look at the experience in other countries. We are already able to see that the measures covered by the bill are not effective, that illegal migration is increasing and has not been decreased by such measures. We have especially noticed that these measures have been particularly negative for human rights. The fact that Canada has based itself on these models, which have not proven to be effective, is extremely worrisome and questionable.

In the few minutes remaining, I would like to allow my colleague to present the more specific aspects of the bill.

[Louise Dionne, Centre justice et foi]

Good evening.

We have proposed six recommendations that pertain to four areas of concern in the bill. Our concerns pertain to the following areas: unequal treatment based on origin, access to fair and equitable procedures that take into account the difficulties encountered by refugee claimants, and access to humanitarian and compassionate applications.

The bill provides for the creation of a list of “safe countries of origin”. Nationals of these countries will have no right to appeal a negative decision by the Refugee Protection Division.

Implementation of this policy is particularly problematic, as the concept of “safe third country” leads to different treatment of the refugee protection claim based on the claimant's geographic origin. That is contrary to Article 3 of the Geneva Convention, which requires that states parties not discriminate on the basis of race, religion or country of origin.

In fact, the British courts have condemned decisions made by the government because of violations of the principle of non-refoulement, the right to family life or privacy. They have further stated that the Home Secretary could not rely on the mere fact that the third party has signed the Geneva Convention as a basis for finding it safe: he must make sure that the country is acting in good faith and compliance with its international obligations.

Given the time, I will cut my presentation short. My first recommendation is that clause 109.1, which pertains to designated countries of origin, be removed from the bill.

I wish to raise another point. The bill provides that the first interview is to be conducted by public servants. Under subclause 169.1(2) in the bill, the members of the Refugee Protection Division are appointed under the Public Service Employment Act. Again, this is an amendment modelled on the British system, where immigration officers conduct the initial interview, which is a crucial stage at which claims are screened. These officials do not meet the requirements of independence and impartiality, and this is a source of concern in view of the government's political objectives. In the United Kingdom, some observers have expressed their concerns regarding the qualifications and training of these officers and the broad powers they are given.

This is why we are recommending that subclause 169.1(2) in the bill be replaced with a new subclause that will provide that the members of the Refugee Protection Division are appointed by the chair of the IRB from a pool of highly-qualified candidates, based on the recommendations of a selection committee and in accordance with the criteria provided in the act. We are recommending that it also be specified that the members may be public servants.

[The Chair, Conservative, David Tilson]

You're now almost a minute over. Could you wind up, please?

[Louise Dionne]

Have I gone over my time?

[The Chair, Conservative, David Tilson]

Well, you're getting close.

[Louise Dionne]

Can I simply state the recommendations?

[The Chair, Conservative, David Tilson]

Sure.

[Louise Dionne]

We have another recommendation to remove references to the conduct of an interview in a clause, that pertains to the timelines. Another recommendation asks that no reference be made in the regulations relating to deadlines for the conduct of an interview or the holding of a hearing. We are also seeking the removal of clause 24(4) in the bill relating to applications on humanitarian and compassionate grounds. Finally, we request that the bill be amended so that the minister can review applications even if the claimants do not have the means to pay.

That is all and I apologize for going over my time.

Thank you for giving me a bit of time.

[The Chair, Conservative, David Tilson]

Thank you for your contribution.

Mr. Mooney and Mr. Morson, you have up to five minutes to make a presentation.

[Philip Mooney, Past President, Canadian Association of Professional Immigration Consultants]

Thank you very much, Mr. Chair, committee members, ladies and gentlemen. We have a submission that is on the way and I'll be reading excerpts from that submission.

CAPIC welcomes the opportunity to appear before this committee. We'd like to offer you some different perspectives and workable ideas. Our submission is based on recent interviews with refugee claimants, both current claimants and successful claimants. The existing refugee system is in need of fixing, and Bill C-11 contains both administrative and program fixes. It is to be praised for some new thinking.

We'd like to extend that new thinking. We will focus on three key elements. First, what factors influence an applicant's decision to make a refugee claim in Canada? Second, how can the new process be improved to better protect those who need sanctuary? Third, what elements must be retained to better program integrity?

First, many claimants learn about the refugee option from friends and relatives who are already here or from their communities outside their home country, most commonly in the United States. For example, there is a Creole radio station in Florida that refers individuals to an 800 number where they get such advice.

Second, many claimants come to the border after believing stories they hear from unscrupulous immigration facilitators. For example, we've included in our brief copies of ads run in Mexico by a ghost agent working out of Montreal, who offers to tell applicants exactly how to claim refugee status in Canada for $150, so they can then work here for several years.

Third, some refugees pay human traffickers for false documents and transportation assistance to avoid legal detection until they reach the Canadian border. We know of a consultant who sells maps to the Colombian community in the United States, showing them how best to avoid border inspections.

However, no matter how refugee claimants may choose to come to Canada, one thing is common to them all: rarely are intended claimants given a full and complete picture of the refugee process or other options to enter Canada legally. They are making risky, sometimes life-changing decisions based on incomplete, if not utterly false, information.

The government's initiative to offer failed claimants resettlement assistance abroad is a good one. This is an example of new thinking, but we believe it could also be improved. It's our members' experience that many who claim refugee status would not do so if they had a full explanation of what the process entails or if they found they could qualify to work and live in Canada under another immigration program.

To help refugee claimants make an informed choice, we recommend that they be given the opportunity to have all their options explained to them very early in the process. We believe the eight-day interview mechanism should be changed to thirty days to allow time for individuals, after entering at a port of entry or after indicating once in Canada that they want to file a claim, to consult an authorized third party who would help them understand other immigration options, including applying outside Canada in some other category, and fully understand the quality of their refugee claim.

When it comes to unscrupulous agents, this committee recommended changes two years ago to the regulations, which would have closed loopholes that permit said agents to operate. This committee also recommended that the body charged with regulating immigration consultants be wound down, reconstituted, and given more powers to prosecute those who would pervert the system, which would include the so-called bottom feeders who induce people to take enormous risks in travelling to Canada, often illegally, and in making false refugee claims. This committee repeated those recommendations last year.

We have heard that the government is moving at last to implement the recommendations of this committee, and we support that initiative wholeheartedly. This would help reduce the number of false claims. But we would like the committee to note that it is not a problem restricted to immigration consultants, regulated or unregulated. In fact, we believe that many more refugee cases are filed by lawyers than by consultants.

With regard to filing false claims, in some cases claimants cooperate willingly with unethical agents, paying for false documents and for preparation of claims that are without merit. The biggest deterrent to doing this would be a fast and efficient process that would return them to their home country before they had a chance to recoup their expenses. This then would send a message to that community that any money spent would be wasted, and they would move on to easier pickings.

For those who set out to break the law in Canada, mechanisms already exist to bring these individuals to justice. However, when it comes to immigration it's often unclear to the general public who they should call. Is it the RCMP, the local police, CBSA? What we need is a single hotline where individuals can anonymously report cases of immigration fraud or related criminal activity.

Many of our members report having received such calls from individuals who come from countries where the rule of law is compromised or even non-existent. It is heartening to see that they have already learned the value of participatory justice in Canada, but even more heartbreaking to see that little or nothing is done with their information.

With respect to the safe country of origin, designating certain countries as safe can reduce the number of false claims. However, our suggestion is that you incorporate into the concept that there are populations within any country, no matter how free or democratic, who are at risk of persecution. This list of populations at risk could be worked out with stakeholders and updated frequently.

[The Chair, Conservative, David Tilson]

Excuse me, sir. You're over your time. If you could wind up, we'd appreciate it.

[Philip Mooney]

Okay. I would like to make a point on PRRA, the pre-removal risk assessment.

It's important to remember why we have PRRAs in the first place. Canada will not remove individuals to countries where they face a real risk of death or injury. That's the reason for PRRA. Therefore, PRRAs should be available to all failed claimants regardless of their country of origin. The PRRA process is relatively quick, and it will not add significantly to the timeline.

We are also in favour of the idea of having the ability to introduce new evidence at any stage throughout the application and the process.

Thank you, sir.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Mooney.

We now have Mr. Howard Anglin, a lawyer who is speaking from Washington.

Mr. Anglin, normally we have a video conference, but there are technical problems so it's a teleconference. I'm told the television audience will see your picture, but we will not. We'll have to imagine what you look like.

[Howard Anglin]

I'm sorry for the people who have to see my picture.

[The Chair, Conservative, David Tilson]

You have up to five minutes, sir, to make a presentation.

[Howard Anglin]

All right. Thank you very much for inviting me to address the committee today from Washington, D.C.

[The Chair, Conservative, David Tilson]

Thank you for coming, sir.

[Howard Anglin]

Thank you.

I recognize the extreme time limits. I will be brief.

I would like to address two aspects of the proposed legislation. Specifically, I'll make a general comment on how Canada's vulnerability to illegitimate refugee claims undermines the purposes of the 1951 convention. Secondly, I will make a short comparison of some of the primary proposals in the bill versus the practice in comparable western democracies.

I'd actually like to start with a short parable, if you'll indulge me. Some years ago, when I lived in New York City, I met a young Canadian woman who'd just moved to New York. One day we were walking down the street in Greenwich Village and she was approached by a man who proceeded to spin a long tale of woe. It was something about needing money for a cab to go somewhere to meet somebody. Anyway, the bottom line was he wanted $20. When he finished, I told my Canadian friend not to give him anything, because it was a scam. She gave him $20 anyway.

A few days later, we found ourselves at the same corner and, sure enough, the same man approached us and told exactly the same story. This time she refused to give him the money. After I gently teased her about her earlier gullibility, she became indignant and defensive. She said she'd rather be a sucker than become cynical.

I've thought of this story frequently as I've reviewed the state of Canadian refugee policy. I've concluded that if Canada wants a motto for its current system, I would humbly suggest the motto “we'd rather be suckers”.

By almost any measure, Canada's refugee system compares unfavourably to other western systems. Some Canadians may take misguided pride in being so indulgent to so many claimants, whether they're legitimate or not. Given the much higher acceptance rate in Canada, I would submit that most of them are not legitimate. These Canadians may console themselves that at least they're not cynical. With due respect, I think it is a self-indulgent and dangerous way of thinking; and worse, it actually hurts those the 1951 convention was intended to help.

The refugees who make it to Canada and apply for refugee status in Canada are disproportionately among the most fortunate, sophisticated, and wealthy of all claimants, legitimate or illegitimate. By contrast, most genuine refugees do not make it much farther than across the border of the country they're fleeing to the first safe haven they can find, where they're often housed in UN refugee camps.

To its credit, Canada has a great program by which it resettles a select number of these overseas refugees. One of the best features of the proposed reforms, and one the government should be congratulated on, is the increase in the number of these clearly legitimate and deserved resettlements.

Canada spends much more money on inland refugee applications than it does on supporting overseas refugees, and that does not include health care and other state benefits, which can be as much as $1 billion or more a year. Ironically, and sadly, every dollar spent in Canada on refugee processing could be more effectively and profitably spent on overseas refugees. The amount spent to process a single refugee claim in Canada could sustain scores of refugees in UN camps every year.

A truly humane refugee system, one designed to benefit the most refugees and the most needy refugees, would focus on refugees in overseas camps rather than accepting virtually unquestioningly anyone savvy enough to target Canada or anyone wealthy enough to get here.

Because my time is limited, I will be very brief in addressing two aspects of the new bill: the timelines for processing claims and the safe country or designated country provision. My focus here will be on a comparison to other international countries, which is my area of expertise.

The proposed time periods of eight days and 60 days bring Canada in line with other western democracies. Actually, eight days and 60 days are still more generous than many other western democracies.

For example, the time limit for making a refugee determination in Australia is 90 days. In Finland, under their accelerated procedure, the average time is 57 days. In Ireland priority applications are decided within 20 days. In France the initial decision must be made within 21 days. Under the priority process, it's 15 days, and as few as five days if the applicant is in detention. In the Netherlands, decisions in the accelerated stream are made within 48 hours and an appeal must be lodged within 24 hours after that decision is made.

Canada's proposal of an initial information meeting within eight days and a hearing within 60 days is well within the international norm for the processing of claims. Likewise, the designated country provision finally brings Canada in line with best practices in refugee law.

The other option is to use what is called a “manifestly unfounded” or “clearly unfounded” standard for identifying frivolous claims right at the outset of the process, and then those claims can be expedited for removal either without appeal or with an appeal that occurs after the claimant has already left the country.

Virtually every western democracy uses one or both of these methods in streamlining the process, and it's really not too much to say that without one method or the other, reform is futile. Both of those are welcome additions to Canadian refugee law.

[The Chair, Conservative, David Tilson]

Mr. Anglin, you are over your time. I wonder if you could wind up, please.

[Howard Anglin]

I think I'm out of time and I'm happy to take questions, and even answer them, if I am able.