Citizenship and Immigration Committee on May 31st, 2010

[The Chair, Conservative, David Tilson]

Mr. Calandra.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I wonder if you could give me some of your thoughts with respect to the current system and its vulnerability to abuses, and how it frustrates the current process, the removal of failed claimants.

[Howard Anglin]

Absolutely. I think Canada is overly generous compared to any other country, with acceptance rates that are double or triple the average of western countries. Many European countries have acceptance rates for refugees in the single digits; Canada's has varied between 40% and 60% over the last 30 years. This is clearly counterproductive.

To draw an analogy to urban planning, if you have traffic congestion and you try to solve it by building more and wider roads, you find that you get more drivers and never really fill it to capacity. Similarly, generous immigration policy, one that lets in far more claimants by a wide margin than any other western country, will see the number of applicants swell and backlogs persist or even grow.

I'm happy to go on the record saying that Canada won't get its refugee system in order and won't get rid of the backlog until it does one or both of two things: either it has to restrict the benefits available to claimants before their claims are accepted, benefits like the right to—

[The Chair, Conservative, David Tilson]

You have one minute.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I think we've lost him.

Mr. Mooney, you had talked about the eight-day interview. You seem to have turned it into an interview to an armed guard, to Lord knows what else might be present at the interview. If I were to suggest to you that it's just an opportunity for somebody to speak to somebody after going through something as traumatic as you suggest, and it really gives them an opportunity, like the 28-day written, to tell us what happened, and it would be written or sent in an audiotape to whoever decides to represent them later on, and it gives a clear, non-threatening way of starting their process in Canada, getting information to them about what their options are, how can that not be better than the current system, which lets people languish for up to 28 days? Are you suggesting that no mistakes are made on the 28-day application, that people aren't maybe falsifying, or that they don't go down the wrong process because it's 28 days?

[Philip Mooney]

Those were two questions.

[The Chair, Conservative, David Tilson]

Maybe you could just answer one.

[Philip Mooney]

Okay. I've never been a refugee claimant, but in our meetings and discussions with refugee claimants they consider the first few weeks in Canada to be not catastrophic, but absolutely mind-bending. Again, when they go to see an officer for the first time, these are officers and they are armed, all right? We've had that comment come back many times. Individuals see armed people as authority, and they're not comfortable in that interview.

At the same time, the 28-day issue is one that says if you use the 28 days to make sure they understand what everything is all about, then the 28 days are well used, because a certain percentage of them will not go ahead. We see many people in the last stages of the process who should never have been there. They could have come here as skilled workers, as temporary workers, as students. We see many people like that, but instead they've gone through four years of hell.

[The Chair, Conservative, David Tilson]

Thank you.

I'm sorry, I have to cut everybody off because we've only allowed an hour for you. I apologize. We were a little bit late in starting and we've had technical problems with Mr. Anglin's connection in Washington.

Mr. Garant, Ms. Dionne, Mr. Mooney, Mr. Morson, and Mr. Anglin.... Can you hear me? Too bad, I guess. I'm sorry. It's unfortunate. But I want to thank you all for coming and making a contribution to the committee. It was appreciated. Thank you very much.

This committee will suspend for a few moments.

[The Chair, Conservative, David Tilson]

Okay, ladies and gentlemen, we'd like to start the second hour this evening.

We have appearing before us the Minister of Citizenship, Immigration and Multiculturalism, the Honourable Jason Kenney. With him is the assistant deputy minister, strategic and program policy, Les Linklater; the director general, refugees, Peter MacDougall; the senior legal counsel manager, refugee legal team, legal services, Luke Morton; and last but not least, the director, asylum policy program development, Jennifer Irish.

Now, all of you appeared before us at the beginning of these sittings. With the exception of the final hour, which will be the Immigration and Refugee Board of Canada and the Canada Border Services Agency, our hearings will be concluded. After that we will start clause-by-clause.

Minister Kenney, I assume you've been listening to some of the presentations to date and that you'll have some comments to make to some of those presentations. We would like to hear from you now. Thank you for coming, Mr. Minister.

[Jason Kenney, Conservative, Minister of Citizenship]

Thank you, Mr. Chairman.

I have read all of the witness statements as part of this review.

Let me begin by thanking all members of the committee for their diligent efforts over the past month. While not all members may agree on all details of the bill and the broader package of reforms, there is no doubt that all members have discharged their duties as legislators with evident concern for this very serious issue in all of its complexity.

And you are right to have done so because, at the end of the day, this reform is not about words on a piece of paper. It is about people. It is about justice, fairness and about redeeming Canada's refugee system from years of dysfunctionality, so that we might better protect those in need of our help, while discouraging those who would abuse our generosity.

Let's remember why we're here. For too many years governments of different stripes, including of my party, have looked the other way rather than address serious problems that have burdened—many would say have broken—our asylum system. With an average long-term backlog of 40,000 cases, we have a system that forces victims of torture to wait for more than a year and a half for the certainty of Canada's protection, while allowing manifestly false claimants to game our system and our taxpayers for years.

Mexican President Calderon reminded us of the consequences of our broken asylum system just last week, when he said,

I...know that there have been some who, abusing the generosity of the Canadian people, have perverted the noble aims of the asylum system to their own ends, which led the Canadian government to require visas for those travelling between our countries.

He went on to say, “We sincerely hope that the solution that this Parliament is studying through comprehensive amendments to the refugee law will also serve as a bridge that will allow us to renew our exchanges”.

Band-aid solutions have been tried in the past, Mr. Chairman, but they have failed, like injections of more taxpayers' money to fuel the broken status quo, but which left us no further ahead in dealing with a cumbersome system that is, quite frankly, too easily abused.

And so we must act. Bill C-11 represents an historic opportunity to do so. I do not pretend that the bill as presented by the government is perfect. But it is the result of years of study and consultation by my ministry, and experts, to design an asylum system that, in the words of former IRB Chair Peter Showler, is both “fast and fair.”

I believe that this bill strikes the right balance. But as I have said from the beginning of the process, the government is open to thoughtful improvements that achieve what I believe is our common goal: a fair and fast asylum system.

That this is the common goal came clearly to light in March of last year when the official opposition immigration critic, the member for Vaughan, demonstrated leadership by standing in the House of Commons and asking me, “Why has the Conservative government failed to provide a timely and efficient refugee determination system to people who desperately need one?”

His question, to be fair, reflected the policy of his party, which in its 2008 platform said, “A Liberal government will respect Canada's international commitments to refugees while providing a timelier and efficient refugee determination system”.

I replied to his question that I was delighted to hear the interest of the member in hopefully working together to create a more efficient refugee system. We have indeed, all of us, worked together to that end.

As members of the committee will know, I consulted with many of you prior to the introduction of Bill C-11, inviting ideas for sensible asylum reform. Following introduction of the bill, I went across the country to listen to stakeholders and others.

I'm very pleased to report that following that tour, virtually every newspaper editorial board in the country endorsed our reform package, as did dozens of stakeholders. But I took note of concerns expressed by some groups; for example, Christine Morrissey, the founder of the Rainbow Refugee Committee in Vancouver, and Heather Mantle of the Matthew House Refugee Centre in Windsor.

When Bill C-11 came before the House at second reading, I listened to every speech. I can assure you that I've read all the transcripts of this committee's hearings. During all of these debates and consultations, the government has taken note of constructive criticism and we recognize that we must work together with the opposition to craft a bill that will reflect a parliamentary consensus. But let me be clear, we cannot and will not do so at any expense.

As you proceed to clause-by-clause, we are open to sensible amendments that would render a fair and fast refugee determination process. However, if amendments are made to the bill that for example would significantly slow the process or would undermine our efforts to disincentivise waves of false claims from safe democratic countries, then the government will elect not to proceed with the bill and its associated reforms.

So the stakes are high. If members choose to play politics with this real opportunity for balanced reform, then let's be clear as to what we will all be losing. We will lose a new refugee appeal division for the vast majority of claimants, an appeal division that's better than what was contemplated in IRPA in 2002. That means that if the bill fails as a result of unreasonable amendments, no claimants from any country of origin will have access to a refugee appeal division. That will be a choice if people make such amendments.

Protection for bona fide refugees in a few weeks will be lost, rather than 19 months, which is the status quo. Removal of false claimants in about a year, rather than about five years, will be lost, as will some $1.8 billion in savings for taxpayers.

A program of assisted voluntary removal for failed claimants will be lost. Also, $540 million in new resources for the refugee system, including a 20% increase in resettled refugees and a 20% increase in the refugee assistance program for government-assisted refugees, would be lost. Finally, fully independent decision-makers--rather than political appointees--at the refugee protection division of the IRB would be lost.

Colleagues, I sincerely hope that we will not lose these progressive reforms. We can work together to put the interests of Canada, of taxpayers, of victims of persecution ahead of any of our own political interests. We will do so thanks in part, I believe, to the leadership of the official opposition. Their immigration critic has approached the government with determination and with a series of compelling and we believe workable amendments to the bill, as well as related regulations and IRB procedures. Allow me to detail these changes.

In response in particular to Mr. Bevilacqua's request to increase clarity, we propose to include the term “safe” in the legislation in relation to the designation of countries, and to provide greater transparency around the criteria that will have to be met to designate a safe country of origin.

We also propose to clearly limit the powers of the minister in the designation process. The accompanying regulations, which I am pleased to table today in draft form, further outline the criteria that will need to be met for a country to be designated as safe. You will note that these draft regulations further limit the minister's powers and require that a safe designation can only be made if an advisory panel, including at least two independent external human rights experts, recommends it. Of course, as we've said from the beginning, we anticipate the involvement in the UNHCR in that process.

These amendments go a long way toward depoliticizing the designation process.

A second amendment addresses concerns regarding access to the humanitarian and compassionate process. We've tabled an amendment that would allow people who withdraw their refugee claim prior to a hearing before the RPD to make an application for humanitarian and compassionate consideration. So that concurrent bar would be lifted at the front end of the process to allow people to redirect their claim into the appropriate stream.

A third legislative amendment we have proposed is to transfer the pre-removal risk assessment function from my ministry to the IRB. As the IRB presently delivers the majority of risk assessment decision-making, we agree with many experts that it is a more logical place in which to centralize the risk assessment function.

The official opposition immigration critic strongly advocated the views of many that the proposed timelines for the interview and initial hearing are too short. I do not share that concern. I believe, in fact, that the proposed timelines are longer than in all, or virtually all, of the comparable systems--for example, in western Europe--and those are benchmarks against which we must assess ourselves. But in order to get consensus on these reforms, I made the difficult decision to accept Mr. Bevilacqua's recommendations and to write to the IRB to suggest the timeframes for the triage interview or the information-gathering interview be moved from eight days to 15 days, and that the RPD hearing be moved from 60 days to 90 days. We've written to the IRB chairman recommending that and expressing our policy preference, and you will see in the letter tabled before you that he has written back positively.

I'll close now, Mr. Chairman.

Let me be clear, these changes together represent very significant changes to the bill, to procedures, and to regulations, and address most of the principal concerns that have been expressed by opposition members and interest groups. While I frankly have concerns that some of these measures may go too far in the other direction, not maintaining the kind of balance we hoped for, I know that the government must compromise in order to move the Balanced Refugee Reform Act forward, so we will compromise. For the greater good, we will accept these changes.

In closing, I would like to once again thank all of you for your hard work. And in particular, I would like to recognize the member for Vaughan, who has been a tenacious advocate for his party's tradition of fairness and justice, while demonstrating the kind of leadership that we need to make this minority Parliament work for all Canadians.

I look forward to your questions.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Minister.

As you can well imagine, there are questions. Monsieur Coderre has some questions for you.

You have the floor, sir.

[Denis Coderre, Liberal, Bourassa, QC]

Thank you, Mr. Chairman. I will be sharing my time with Mr. Karygiannis.

Minister, you can congratulate and thank the official opposition, but what you are saying, through barely veiled threats, is that if this does not work, there will be no legislation.

We have heard many things that we support. We agree that the timeframes have to be changed. We also agree that the process will lead to the creation of an appeal division. However, we are confronted with the fact that each case is unique. If we are to establish a list of safe countries, that would mean that each country would be labelled from now on. This is a regulatory matter. You can always change the regulations. Even if we establish a committee that were to decide—and you can always say that it would be apolitical—the fact remains that we would agree to a principle that would remove the specific or unique character of each case.

I have asked your colleague some questions. There are people I know who do remarkable work, including Mr. MacDougall. I asked him a question to which I kind of knew the answer. He indicated that we need to impose visas if we are to streamline the flow of people who are intent on abusing the system. That is something you have already done in the case of Mexico.

Let us say that we are in favour of all elements, except one. That at least is my case. Personally, I do not approve the imposition of a list of safe countries. Am I to understand that, if we were to strike subclause 109.1 of the bill, but are in favour of all the rest, you would withdraw the bill? I am not proposing amendments that would change things. I am in favour of most of the amendments. We have discussed them, and they reflect what witnesses have told us. You are saying that if we withdraw subclause 109.1 of the bill, which provides for the creation of a list of safe countries, you are ready to scrap the entire piece of legislation and not move forward? Is that so?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Yes. That is what I told Ms. Chow, who asked the same question. I said that we could not move forward with the bill if we did not speed up the process by taking into account people who come from democratic and safe countries, without the means to deal with the waves of bogus refugee claims of people from safe countries, because we will lose that absolutely essential balance.

I would remind you, Mr. Coderre, that you yourself, as minister, decided to not establish a refugee appeal division. Your government made that decision. As a result, today's unsuccessful claimants cannot access an appeal division. We are proposing to add an appeal division for the vast majority of refugees. According to the previous government's position, even nationals from North Korea and Iran could not access the Refugee Appeal Division. According to our proposal, all of those people would be eligible. I see that as progress.

Moreover, as a result of the reforms, one category of foreign nationals cannot even have a hearing to consider their applications. I am referring to U.S. nationals, pursuant to the Safe Third Country Agreement with the United States.

You are the minister who signed that agreement and who said that some foreign nationals would not even have access to a hearing. So I found your position somewhat inconsistent with regard to that section of the bill.

[Denis Coderre, Liberal, Bourassa, QC]

Minister, with all due respect—I even asked Mr. MacDougall this question—I must say that we make a very sharp distinction between what is in this bill and this safe third country agreement. Indeed, the United States signed the Geneva Convention of 1967, under the auspices and umbrella of the United Nations High Commission for Refugees. We did some work as a result of this. As you will recall, we discussed the matter in all its aspects. At any rate, we had some ad hoc policies that enabled us to apply exceptional measures.

You are creating a diversion. As Mr. MacDougall rightly said, the safe third country agreement is completely different from this list stating whether or not such and such a country is safe. Essentially, you want to repair the mistake you made with Mexico by imposing a visa. You are grappling with this mistake and you are not prepared to assume the political consequences. You want to rectify this by implementing a list so that you can finally tell Mexico that it is deemed to be a safe country and straighten out the issue pertaining to nationals from this country. You do not need to change the legislation in order to deal with the flow of refugees. When we left government, there were 20,000 refugee determination cases, and now you have 60,000.

We need regulations and political action, but you are somebody who is responsible for the policies. You make decisions and you are responsible for these decisions. If we had a visa policy that worked very well, you could deal with the flow of what you refer to as false refugees. We did this, for instance, when I imposed a visa on Costa Rica.

Mr. Minister, I know that you want to develop your legacy. Every minister tries to flaunt his accomplishments. Nevertheless, why not set up a system, through regulations, that would allow appeals to be heard and shorten the timelines? You said so yourself, you quite rightly bragged about my colleague from Vaughan—because there is a little bit of us in all of this. You already have the tools to strike this balance with respect to the visas. Mr. MacDougall said so, and rightly so. So why does it bother you to set this aside and adopt the rest so that we can have a process?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Mr. Chair, Mr. Coderre is right. We could use the visa tool universally, as Australia does, and impose it on every country. Personally, I do not believe that this would be in Canada's interest. We have seen the negative reactions from Mexico and the European Union.

At the same time, we have to be consistent. Last week, the Liberal Party critic for tourism, Mr. Bains, said that we would have to withdraw the visa that has been imposed on Mexico. Mr. Coderre indicated that we should be imposing visas on a certain number of other countries. We need a tool that is somewhere between these two positions.

You mentioned that there was a backlog of 20,000 refugee claims under the former government. Over the past decade, the average number has been 40,000 claims. In 2004, there were more than 50 000 cases. Finally, I would remind you of what your leader said:

There are a number of countries in the world in which we cannot accept a bona fide refugee claim, because you don't have cause, you don't have just cause coming from those countries. It's rough and ready, but otherwise we'll have refugee fraud and nobody wants that.

Personally, I do not agree with your leader at all. I think that he goes too far in his policy to prevent a hearing—

[The Chair, Conservative, David Tilson]

Okay.

[Jason Kenney, Conservative, Calgary Southeast, AB]

—even in the case of a hearing for a claimant. We are simply proposing that the processing time be sped up.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Minister.

Mr. Coderre, we'll have to move on to Monsieur St-Cyr.

You have the floor, sir.

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

Thank you.

Mr. Minister, in your answer to Mr. Coderre, you talked about the need for a mechanism, a tool to speed up the processing of applications and to prevent potential cases of fraud organized by people who want to abuse the generosity of our system.

During our hearings, a variety of witnesses, lawyers, all kinds of representatives, mentioned and put forward another tool. This tool, which is not a list of designated countries, would rather allow the Canada Border Services Agency to isolate cases to be processed by the IRB as a priority. These cases could concern an individual or groups determined on the basis of national criteria. These people would have the same rights, but their files would truly be dealt with quickly. In that way, if it was a case of a situation of abuse, as may have been suspected from the outset, they would be returned to their country of origin quickly.

According to most people, and I also agree, this system would allow us to be fairer, and to not shoulder the blame of having to grant different rights according to the country of origin. Moreover, we would avoid cases being brought before the Federal Court of Canada by people who want to challenge the decision or file a second appeal, as is currently the case, because they feel that they have not had the opportunity to assert their rights.

As you have carefully read all of our interventions, would you be prepared to consider this expedited method of processing individual claims, if the committee judged it to be appropriate, in place of the mechanism based on a list and on the denial of the right of appeal for certain individuals as a result of their country of origin?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Your comments are most interesting, Mr. St-Cyr. I would note that this system is comparable to several that are currently in effect in Western Europe. This type of process includes an interview that takes place immediately after a claim is filed, which allows the border official to make a preliminary determination.

I have studied all of the options concerning this problem of bogus claims coming from countries that we consider to be safe, including this idea. However, government lawyers have assured me that adopting such a system would be ultra vires. It would contravene the Canadian Charter of Rights and Freedoms and the Singh decision of the Supreme Court of Canada from 1985. According to the case law resulting from that decision, we are obliged to grant each claimant a hearing. The system you are proposing is therefore—

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

I am sorry to interrupt you, but that is not what I was talking about.

The proposal that was made by the Canadian Council for Refugees, among others, and that was also mentioned by the Barreau du Québec and by the Canadian Bar Association was quite different. What they were proposing, rather than creating a list of designated countries, was to allow the Canada Border Services Agency to target the cases that seem suspicious to them, so that the IRB could process them as a priority, in the same way, while granting the same right of appeal, using the same procedures, but while fast-tracking them. We could then settle these cases before dealing with the files of claimants that we judge to most likely be legitimate.

This alternative was more or less agreed upon, and you have probably read about that in the reports following our hearings. Is this a tool that you would be prepared to take into consideration, at the very least?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Mr. St-Cyr, we believe that with the proposed system and the changes that would be made, everyone would be able to get a hearing quickly, that is to say within the 90-day timeframe. Also, the IRB official who would carry out the preliminary interview would be able to propose an expedited process for the persons who clearly seem to be bona fide refugees who are in need of our protection. I believe that we have already provided for the consideration of the specificities of each case in the reform.

From the outset, we have had a system without an appeal division. We would add an appeal division. No one would be a loser in the new system.

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

Yes they will, because you have closed many other doors. There are humanitarian considerations that can no longer be used, as well as the pre-removal risk assessment and the temporary residence permit. Therefore, there are a whole series of doors that have been closed. The first step is no longer managed by board members, but rather by public servants. It seemed to me that there would be some kind of balance once everyone had access to the Refugee Appeal Division, which is to say that everyone would be offered the right to appeal, but in exchange, we are closing the door to humanitarian and compassionate grounds, to temporary residency and we are closing the door on the PRRA.

On the other hand, we cannot close a series of doors and not offer anything in exchange. Therefore, in my opinion, it would be better to find an expedited mechanism that would offer everyone access to a true appeal.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Mr. St-Cyr, I would remind you that within the asylum system in Western Europe, for example in the United Kingdom, a person has the right of appeal after having been removed at the border. They can therefore file an appeal on paper after having left the country. Furthermore, in several other countries, there is no right of appeal. There is no right of appeal in Canada, but we are adding a right of appeal for the vast majority of people.