Citizenship and Immigration Committee on May 31st, 2010

[The Chair, Conservative, David Tilson]

Your time is up, Mr. Karygiannis.

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

You're saying that if we don't play your set of marbles, then you're going to take your marbles and go home.

[Jason Kenney, Conservative, Calgary Southeast, AB]

No, it's the opposite of what I'm saying, Mr. Chairman. I haven't heard a single word of acknowledgement from Mr. Karygiannis about major substantive amendments that we have made to this bill, to the draft regulations with respect to anticipated procedures at the IRB, because of recommendations from the official opposition.

You say you don't think this safe country system will work? Your leader, sir, disagrees with you. He says there are a number of countries in the world from which we cannot accept a bona fide refugee claim, because you don't have cause—

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

Chair, on a point of order, I did not say that it won't work. I said that witnesses told us that it won't work. Maybe the minister needs—

[The Chair, Conservative, David Tilson]

That's not a point of order.

We're going to move to Monsieur St-Cyr.

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

Thank you.

I think everyone agrees that we need to speed up the process and have the tools that will allow us to fend off the waves of illegitimate claimants. However, we cannot seem to agree on what is fair and even on what is effective.

Personally, I do not believe that having a list of designated countries is an effective way to deal with the problem. Rather than having their cases processed by an expert appeal division, as part of a tribunal whose very function serves that purpose, claimants will have to appeal to the Federal Court, as is now the case. That isn't such a far-fetched consideration, since you have provided the addition of four judges at the Federal Court, pursuant to section 41 of your bill. As you were in the process of preparing your bill, you knew that it would lead to an increase in the number of challenges before the Federal Court.

Would it not be better to implement a non-discriminatory process, simply to speed up the current process and ensure that people have full access to the Refugee Appeal Division rather than having to file an appeal at the Federal Court? That process is much more onerous, long and costly than having an appeal division.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Allow me to clarify one thing, Mr. St-Cyr. We do indeed expect an increase in the number of cases submitted to the Federal Court, for the simple reason that the new system will process a greater number of cases. We will be adding resources. We will, therefore, have the new system as well as a strategy to deal with the backlog.

We are expecting to process 28,000 files per year. We estimate that all unsuccessful claims will result in requests for authorization to appeal to the Federal Court. However, we expect there will be a decrease in the number of requests for authorization granted by the Federal Court because of the creation of an appeal division. We expect that the Federal Court will dismiss a greater number of those cases.

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

When people will ask the Federal Court to intervene because they will not have been given a right of appeal given their country of origin, the Federal Court might be inclined to conduct more regular checks of how the process is working. In fact, it will not have the impression that due process was followed, and that everyone has the same opportunities and rights.

Furthermore, you spoke about conducting interviews, thus adding another step. That to me appears to be unproductive. When I introduced Bill C-291, I remember your saying that we had to stop adding extra steps. Up until now, people filled out a form, which was dealt with directly during the hearing stage. Now, you want to add an interview stage earlier in the process.

Do you not think that the interviews will further slow down the process rather than expedite matters?

[Jason Kenney, Conservative, Calgary Southeast, AB]

No, we believe it will speed up the process. For clearly well-founded cases, it will be possible to set a hearing date earlier than the current 90-day timeframe. Many steps, including case preparation, which requires time from the Refugee Appeal Division, will be addressed during the preliminary interview. We believe that is one of the effective elements of the proposed system.

[The Chair, Conservative, David Tilson]

Thank you. I think the time has come to say goodbye.

Mr. Minister, thank you to you and your colleagues for coming to speak to us tonight. I hope you wish us well with the rest of our deliberations.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Oh, yes, I do.

[The Chair, Conservative, David Tilson]

Thank you.

We will suspend.

[The Chair, Conservative, David Tilson]

Ladies and gentlemen, we're moving into the final hour of our hearings this evening, and we have two groups of witnesses as guests tonight. We have the Immigration and Refugee Board of Canada and the Canada Border Services Agency.

Representing the Immigration and Refugee Board of Canada we have Simon Coakeley, who is the executive director, office of the executive director. That doesn't make sense, but that's what I read. We have François Guilbault, who is the senior legal adviser. Good evening to you, gentlemen.

And representing the Canada Border Services Agency, we have Mr. Peter Hill, who is the director general, post-border programs; and we have Mr. Reg Williams, who is the director of inland immigration enforcement, greater Toronto area region. And finally, we have Ms. Leigh Taylor, who is the senior general counsel. Lady and gentlemen, welcome to the committee.

Each of you will have up to seven minutes to make a presentation, and then the committee members will have some questions.

So we'll start with the Immigration and Refugee Board of Canada. Again, thank you for coming.

[Simon Coakeley, Executive Director, Office of the Executive Director, Immigration and Refugee Board of Canada]

Thank you, Mr. Chair.

Good evening, ladies and gentlemen.

Thank you for inviting me to come today to speak with you. My name is Simon Coakeley. I was appointed to the position of Executive Director at the Immigration and Refugee Board of Canada, the IRB, in September 2008. As executive director, I am the most senior public servant at the IRB.

The board's adjudicative support and corporate services staff report directly to me, and I report directly to the chairperson. As mentioned, I am accompanied by François Guilbault, who is here today in his capacity as a senior legal advisor to the IRB. Mr. Guilbault has extensive experience with the Board and is very familiar with the legal aspects underpinning the IRB's operations. He would be pleased to answer legal questions related to Bill C-11.

I trust you have received the submissions from the IRB following Mr. Goodman's appearance before this committee on May 6, 2010. As requested, we provided statistics on refugee decisions, our GIC member complement as well as information on the salary ranges for governor in council appointees and the rates of pay for the current public servant decision-makers in the Immigration Division. And finally we provided a link to the Public Service Commission's report on its audit of the IRB, which includes its recommendations and the board's response.

You have expressed a strong interest in the IRB's approach to the staffing of public servant positions in the new Refugee Protection Division, the RPD. To assist in your deliberations, we have also provided the committee with a copy of a letter the chairperson, Mr. Goodman, recently sent to Maria Barrados, President of the Public Service Commission (PSC) regarding staffing plans and priorities in preparation for the implementation of Bill C-11.

In his letter, Mr. Goodman emphasizes that, while the timing of the coming into force of the new legislation is not yet certain and the IRB has not yet developed detailed staffing strategies, it is clear that passage of the bill will require a major realignment in our personnel over the next couple of years. In addition to the establishment of a new RPD and Refugee Appeal Division, this realignment will necessitate significant changes to some existing IRB roles.

The chairperson advised the PSC that, in implementing these changes within the proposed timeframes, the IRB will need to use the full range of available human resources actions, including internal and external competitive processes, assignments and secondments, deployments and appropriately justified non-advertised processes. In doing so, the board will respect all of its obligations under the Public Service Employment Act, the Public Service Labour Relations Act, applicable collective agreements, as well as the PSC core and guiding values of merit and non-partisanship, fairness, access, representativeness and transparency.

Over the past few weeks, the IRB has watched with interest witnesses who have appeared before this committee, and we have noted the comments that have been raised regarding the hiring of public servant decision-makers in the new RPD and whether or not they will be independent.

I feel it is important for me to reiterate the commitments made by the IRB chairperson before this committee, i.e., to ensure that the public servant decision-makers of the new RPD will be just as competent and independent as our GIC members are today.

The board will continue to employ a rigorous merit-based screening process, in which all candidates will be evaluated on their skills and abilities against various competencies such as: written communication, conceptual thinking, decision-making, judgment, analytical thinking, oral communication, information seeking, organizational skills, orientation, self-control and cultural sensitivity. This highly comprehensive staffing approach will ensure that only suitable and qualified candidates will be hired.

Current IRB decision-makers come from all segments of Canadian society. They include adjudicators or mediators at other tribunals, teachers, community leaders, lawyers, as well as other federal public servants and people with experience working in international humanitarian organizations. This type of diversity ensures that all members bring unique perspectives to their role as decision-makers, and this makes our adjudicative system stronger.

In order to ensure that we continue to benefit from such diversity within our group of decision-makers, we will proceed with simultaneous recruitment drives both inside and outside the public service, as Mr. Goodman indicated two weeks ago.

Once hired, all decision-makers, whether GIC appointees or public servants, will be provided with an extensive, world-renowned training program. The IRB training program is recognized internationally, as well as by the Federal Court of Canada and the Auditor General, for its thoroughness and professionalism. In addition, new members' performance during the orientation and training period will be assessed before they are permitted to preside over hearings on their own, with additional customized training provided where necessary.

The public servant decision-makers of the new RPD will be subject to the same code of conduct that applies to GIC and Immigration Division public servant decision-makers currently. The code establishes the standards of conduct that govern the professional and ethical responsibilities of members of the Immigration and Refugee Board of Canada, as decision-makers of a quasi-judicial administrative tribunal. New RPD decision-makers will be bound by this same code of conduct.

The fact is that we already have an Immigration Division that is staffed by independent public servant decision-makers, and we have every confidence that we have the tools, practices, mechanisms and training in place to ensure that this adjudicative independence will continue as we transition to the new system.

As you heard from Mr. Goodman, when he was here on May 6, the IRB began preliminary implementation planning immediately following the tabling of Bill C-11 at the end of March.

To briefly bring you up to date, the week before last, a group of IRB personnel met in Toronto to start mapping out the new process that would need to be put in place from the referral of a claim to the RPD decision, with a particular focus on how the interview function would work. A similar group met in Ottawa last week to do the same thing for the new RAD processes. A lot of good ideas were generated, but it's still too early for us to make final decisions on which ones we will actually implement, because we are fully aware that the details of the legislation may be amended.

For us, the real work to prepare for implementation can only get under way once Bill C-11 receives royal assent in Parliament and transition funding is released. At that point, we will develop rules, finalize work descriptions and accountability profiles for all of the new positions to be created, launch staffing processes, secure office space, and so forth.

I'd like to take a minute to touch briefly on the rule-making process. Rules are one type of policy articulated by the board. Rules, like regulations, are binding. The rules will establish the procedures that must be followed in the refugee protection division, including the timelines for the information-gathering interview and the first-level hearing.

For example, the rules will establish such details as how and when documents are to be provided by the claimant to the RPD and vice versa and the roles and responsibilities of IRB personnel supporting the adjudicative functions. They will also set out the factors that decision-makers will have to take into account when deciding whether to adjourn interviews or hearings at the RPD. Another set of rules will obviously have to be developed for the refugee appeal division.

The process for developing rules includes meaningful consultation with stakeholders and parties appearing before the IRB. In practice, we conduct both internal and external consultations before draft rules reach the stage of pre-publication in part I of the Canada Gazette for formal public comment. After that, the rules are submitted through the minister for cabinet approval and final publication in part II of the Canada Gazette. Once the new rules are in place, they will become the framework on which we will build the structure for the new divisions at the board.

Very important for us in this process is the ongoing relationship we have with our stakeholders, many of whose members have appeared before you in the last few weeks. We will be calling on our stakeholders and asking them to reach out to their membership to help us effectively structure our new processes.

In fact, we already have a meeting scheduled with our national stakeholders group, which includes the CCR, CBA, AQAADI, UNHCR, and others. I can assure you that Bill C-11 will be on the agenda.

There are a couple of points that were raised in committee last Thursday that I would like to briefly address.

Mr. Goodman stated publicly that we will provide a digital record of the interview to the claimant. At this point, it's too soon for us to indicate whether it will be a CD, a USB, a flashcard, or some other format.

The other point is that the IRB would have discretion to adjourn a proceeding for a vulnerable person or for operational or other valid reasons, such as fairness. In fact, one of the benefits we've identified for an early interview is the possibility of identifying vulnerable persons earlier in the process so that they can be appropriately accommodated.

In closing, I'd like to touch briefly on the minister's statement earlier this evening that amendments would be introduced that would see the PRAA function moved from CIC to the IRB. We believe that RPD decision-makers will be well placed to carry out this function, given their access to a world-renowned training program, legal support, and a high-calibre research capacity. But of course we await Parliament's direction in that regard.

As the minister has also indicated, letters have been exchanged between CIC and the IRB with regard to the suggested changes to the timelines for the information-gathering interview and the initial RPD hearing. Mr. Goodman indicated that we will give serious consideration to the proposal of 15 and 90 days, along with other proposals that may arise during our stakeholder consultations as part of the rule-writing process.

Finally, I'd like to quote Mr. Goodman's commitment, and this is what he said to you when he appeared last time:

The IRB will deliver, to the best of its ability, on the requirements of the legislation as determined by Parliament, and we will do so within the timeframes given and within the budget allotted, fulfilling our mandate to resolve cases efficiently, fairly, and in accordance with the law.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Coakeley.

Mr. Hill, it's your turn.

[Peter Hill, Director General, Post-Border Programs, Canada Border Services Agency]

Thank you, Mr. Chair and honourable members.

I'd first like to talk about the challenges that are currently faced by the CBSA in conducting removals, and then I'd like to describe how the proposed reforms and funding would provide some needed solutions.

In the current system, when a person makes a refugee claim in Canada a removal order is issued against that individual. The removal order is unenforceable until after the determination of their refugee claim. After a negative refugee determination decision, the removal order becomes enforceable and the person is required to leave Canada.

Prior to removal, individuals may seek judicial review of their negative refugee determination. An application for leave to the Federal Court for judicial review of a negative refugee determination decision results in an automatic stay of removal until a decision is rendered. So for failed refugee claimants who apply to the Federal Court within prescribed timelines, the CBSA cannot enforce the removal order until the court has had an opportunity to consider the decision made by the Immigration and Refugee Board on their claim for protection.

Failed claimants are also entitled to a pre-removal risk assessment; humanitarian and compassionate consideration; and, potentially, temporary resident permits. Pre-removal risk assessment applications and applications for humanitarian and compassionate considerations are administered by Citizenship and Immigration Canada staff, and the Minister of Citizenship, Immigration and Multiculturalism also has the authority to examine humanitarian and compassionate considerations on his or her own initiative. Each of these recourse mechanisms represents a decision point that could be judicially reviewed, and in turn delay removal.

Once a removal order becomes enforceable, the CBSA has a statutory obligation under the Immigration and Refugee Protection Act to remove that person from Canada as soon as reasonably practicable. It is often challenging to execute removal orders, since people facing removal may have no desire to comply.

The decision to remove someone from Canada is not taken lightly. The CBSA ensures that the right to due process is respected in each removal case before proceeding. Once individuals have exhausted all avenues of recourse, they are expected to respect our immigration laws and leave Canada on their own accord, or face removal by the agency.

In an effort to avoid removal, failed refugee claimants will often go underground to evade detection by the agency. The CBSA works with law enforcement partners at all levels of government to locate absconders, but the strong desire of many failed refugee claimants to remain in Canada means that ensuring that these individuals appear for removal is often challenging. The agency currently has an inventory of over 40,000 immigration warrants, 38,000 of which are for failed refugee claimants.

One of the greatest challenges to removals is the failure of claimants to provide a travel document. Because lack of travel documentation can defer removal indefinitely, the individual may have little incentive to provide existing travel documents or assist the agency in securing new travel documents. Consequently, the agency faces challenges in meeting the requirements of consular officials for granting new travel documents. Even when the individual's identity is not in doubt, some countries are not cooperative in issuing travel documents.

Where all administrative and judicial recourses, such as the pre-removal risk assessment and an application to the Federal Court, have been exhausted and a travel document is available, the subject may still request that the CBSA enforcement officers defer their removal date on an administrative basis. A common reason for CBSA enforcement officers to defer removal is that a medical reason precludes that person from travelling. Officers are obligated to consider every request, and where an officer refuses a deferral request, the applicant must be provided with the decision and the supporting rationale in writing. This decision may also be judicially reviewed by the Federal Court.

The cumulative result of these processes is a refugee system that allows failed claimants to avoid removal for years. The situation appears to be a draw factor for individuals not in need of protection, and it is also apparent that the longer an individual stays in Canada, the more difficult it may be to remove him or her, because they become established here.

Currently, there are more cases entering the enforcement stream than the CBSA is able to remove. The agency must prioritize removal cases based on risk. As the protection and safety of Canadians is a top priority for the CBSA and the Government of Canada, the cases involving individuals who are determined to be inadmissible on the grounds of security, organized crime, crimes against humanity, and serious criminality are handled first. Next in terms of priority are removal cases involving criminality, failed refugee claimants, and others who do not comply with the Immigration and Refugee Protection Act.

Consequently, although failed refugee claimants represent the largest volume of cases in removal inventories, the need to remove priority cases means that the agency is unable to address all cases in the inventory. Despite removing an average of over 9,000 failed refugee claimants a year over each of the last five years, the removals inventory remains quite large, a fact that the Auditor General has noted with concern. The agency shares the concern of the Auditor General, and the proposed new system would allow the CBSA to effectively and efficiently address this issue.

Under the proposed new system, the objective would be to remove failed asylum claimants within 12 months of the final decision of the immigration and refugee appeal division. The role of detentions and removals under the proposed measures would continue to be vital. Timely removal following a final negative decision on a refugee claim is crucial to the success of a reformed asylum system.

The introduction of a one-year bar on post-claim recourses would provide the CBSA a new policy and legal framework that would allow the agency to remove more failed claimants, and remove them in a shorter timeframe. By temporarily barring these mechanisms, duplication and redundancy of the current system and the resulting vulnerability to abuse would be significantly mitigated. As a result of faster decisions and limits on post-claim recourses, the agency expects greater success in the removal of failed claimants. Over the longer term, faster decisions and timelier removals are also expected to deter claims from individuals not in need of protection, resulting in a reduction and removal of pressures.

An assisted voluntary returns pilot program, which would be delivered exclusively in the greater Toronto area, is a key component of the reform package. The pilot would run for four years. It would consist of two phases. The first phase would be for failed claimants who are being returned to Mexico, the Caribbean, and Central and South America. And the second phase, again delivered through the GTA, would be for failed claimants who are being returned to all other parts of the world. The objective of this proposed program is to fundamentally change the behaviour of failed claimants. The aim is to encourage greater compliance and make the alternative of going underground less attractive.

Too many failed claimants do not respect their obligation to leave voluntarily, and as a result face enforcement action and a permanent bar on returning to Canada. Many are unaware of the consequences of not leaving Canada because they lack information. Others simply don't have the means to effect their own return or to support themselves upon return.

An AVR pilot program would respond to these issues by providing increased education, counselling, and limited financial assistance to support reintegration in their home country. This program is key to the removal strategy. It would achieve both humanitarian and enforcement objectives by encouraging timely voluntary removals. From a humanitarian perspective, voluntary removals would allow failed claimants to return with dignity and anonymity to their home countries.

AVR programs are being successfully employed by our international partners, for example the United Kingdom and Australia. In recent years, for example, in the United Kingdom, approximately 20% to 30% of all of their returns had been through their assisted voluntary returns program. The CBSA anticipates that the proposed AVR program would relieve pressure on our warrant and removal inventories, and reduce the need for extensive, time-consuming, and costly immigration investigations.

There would be strict eligibility criteria for this program, in particular no criminality, adherence to reporting to the CBSA, compliance in obtaining travel documents, and a temporary ban on returning to Canada. The expectation is that this program would significantly expedite the process of securing travel documents required for removal. This program would be delivered in partnership with an independent service provider who would undertake the responsibility for making travel arrangements, including securing documents, which are functions currently performed by the CBSA.

Mr. Chairman, in conclusion, in addition to the cost saving for the CBSA removal program, the Government of Canada, provincial and territorial governments, and taxpayers are expected to benefit from cost savings, as timely voluntary removals reduce pressures on social assistance and health care programs.

Thank you, Mr. Chair. I look forward to trying to answer your questions.

[The Chair, Conservative, David Tilson]

Thank you, sir.

You both took more than seven minutes, but what you have to say is very important and we appreciate your coming.

Monsieur Coderre has some questions.

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

I too have important things to say. This will take a few minutes.

[Denis Coderre, Liberal, Bourassa, QC]

I also have a lot to say so I will take 20 minutes.

Thank you, ladies and gentlemen, for coming today. Your role is not an easy one because you are responsible for applying the law, which is not always straightforward. We won't therefore get into politics together. However, I do have some very specific questions to ask you.

Mr. Coakeley, there are those who have questions about how this will be applied. How will it work?

I am absolutely in favour of this. I do not have a problem at all with having public servants on the front lines in order to assist with situations. Obviously everything will depend on training—and at the time, we already discussed this. However, there has to be justice and the appearance of justice being done.

In your opinion, what will be the skills required of these people and what kind of flexibility will there be? Do you want to make sure that these people will be lawyers? You do have to set certain criteria. Perhaps you have already thought about this: what kind of people would this first stage involve?

[Simon Coakeley]

As I tried to explain earlier, we will be using the same selection criteria that are currently used for individuals who are appointed to the Refugee Protection Division by the governor in council. There's a whole series of skills that have already been established—I mentioned a few of them.

Currently, legal training is not required for our decision-makers. Obviously legal training can be an asset but it is not essential. As I stated, these individuals may be teachers, they may work for not-for-profit organizations, they may be nurses, people with all kinds of training, with all kinds of backgrounds. These are individuals who already work in the Refugee Protection Division.

We will use the same kind of criteria. I should point out that not all these criteria have been selected yet, nor all the details, but the system has already been set up. We're using more or less the same criteria and applying them to the selection—because there is no training, obviously selection is very important—of individuals who will be appointed to the new Refugee Protection Division.

[Denis Coderre, Liberal, Bourassa, QC]

I wanted to talk about Pharès Pierre, but I won't—people will understand.

Mr. Coakeley, what will be of utmost importance in my view, if we want to be able to move faster or even better, is that the committee be independent. The Immigration and Refugee Board is an appeal division, therefore there can't be any communicating parts. In other words, the board hears a case, and then there is an appeal. That's the thin red line; this will be important.

What's your opinion on that? If you use the same appointment methods, then you may have the same reflexes. It may also end up being the same people. Do you see where I'm going with this?

[Simon Coakeley]

Yes.

The selection processes have to be different because the new Refugee Protection Division will be relying on a selection process that is subject to the Public Service Employment Act. Members appointed to the new Refugee Appeal Division will always be appointed by order in council. So the current system that we're familiar with for individuals who are appointed—

[Denis Coderre, Liberal, Bourassa, QC]

So it will be a sort of hybrid system.

[Simon Coakeley]

With respect to individuals appointed under the Public Service Employment Act, it is our intention to use what we already do for the decision-makers, but not necessarily copy the process completely.

[Denis Coderre, Liberal, Bourassa, QC]

I have two quick questions and then Mr. Karygiannis has a question to ask.

We hear all kinds of things about the deliberations. What I am concerned about is a lack of sensitivity that may be due to a lack of knowledge. When you appear for the first time, for humanitarian or compassionate reasons, the same agents are there. They have not all read the Supreme Court case law. There may be people who experienced problems for religious reasons.

You had some of those cases. When an information officer, who represents the system—because this is a type of delegated authority—is issuing a visa—it is sort of the same thing—to an individual they are seeing for the first time, they will already be determining whether that applicant should be a refugee or not. Afterwards, if it does not work out, the case moves on to the Immigration and Refugee Board of Canada. How can you ensure that... Dignity and timing have frequently been mentioned but sensitivity will be very important as well because of political realities.

I have a second question. Let's say the minister makes a statement—because he talks a lot—and he says that it does not make any sense to have a refugee application from someone who is Japanese because Japan is a safe country. I am not asking you to talk about Japan but you understand what I am saying. So if the front line is made up of official agents and one reads in the newspaper that a man coming from a certain country requested refugee status, how will you deal with that? Let's not forget that the minister wants to draw up a list, which I am not in favour of.