Evidence of meeting #22 for Citizenship and Immigration in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board.
A recording is available from Parliament.
4:10 p.m.
Manager, Program Development, Department of Citizenship and Immigration
From the individual decision-maker on a case or from the manager?
4:10 p.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Individual decision-maker on a case and/or the manager.
4:10 p.m.
Manager, Program Development, Department of Citizenship and Immigration
Okay. I didn't know that.
4:10 p.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Right now, phone calls are returned, but once it goes to the IRB, a quasi-judicial body, if we were to call you--pardon my expression--just pucker up your lips and kiss it goodbye, because we are contravening that fine line. You're a quasi-judicial body.
So unless the people making the decision are officers and they're removed from being members...that gives us the opportunity and it gives anybody the opportunity to contact them.
You're dealing with a person's life. You're dealing with a person who at the very last moment has some new information; something changes, as it changes on an everyday basis. Then what comfort level do I have? If the decision is wrong--
4:10 p.m.
Manager, Program Development, Department of Citizenship and Immigration
The act will not prevent a person--
4:10 p.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Sorry, Mr. Butt, but if the decision is wrong and the person is deemed to be removed, he doesn't have the time to go to the Federal Court. We're talking at the very last minute here, when you don't have the time to go to Federal Court.
4:15 p.m.
Manager, Program Development, Department of Citizenship and Immigration
The person who has information with respect to their case can submit it to the decision-maker. If it's urgent, then the information can certainly be sent by facsimile or by an e-mail attachment. There are ways to get information to a decision-maker at the last minute.
Now, if the decision has already been made, it may be too late, but the burden is on the individual, with the assistance of any counsel they engage, to ensure that the decision-maker is up to date with respect to their particular circumstances.
4:15 p.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Mr. Butt, it seems that we're dancing around in a circle, so I'm going to be specific again. Can you change the legislation and put something in there that will allow intervention by a member of Parliament without getting into difficulty, as we are able to do now, to reach the board or to reach the decision-maker to say there is new information? Take faxing; talking about the IRB, you're lucky if it's looked at within 24 to 48 hours. An e-mail is never looked at. We're even discouraged from sending e-mails.
I'm talking to you about practical stuff, on the ground, maybe a little more than my colleagues are doing. Maybe I'm a little bit more hands on, but you can't send an e-mail because it will be looked at but not acted upon. As for faxing, you don't know who the officer is. You don't know who's making the decision. If you put it in “general”, by the time it gets there, it will be two weeks.
4:15 p.m.
Manager, Program Development, Department of Citizenship and Immigration
My colleague pointed out that of course if there is a last-minute situation of the type you've described, you and the constituent can certainly ask Canada Border Services Agency for a deferral of the removal until the board has had an opportunity to look at this new evidence.
4:15 p.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
Sorry. Look--let's not play with words here. This is to get information to you. If I go to CBSA and ask for a deferral, you won't know those facts, because the decision is made at your body.
4:15 p.m.
Manager, Program Development, Department of Citizenship and Immigration
I'm an employee of the department, not of the board.
4:15 p.m.
Liberal
4:15 p.m.
Manager, Program Development, Department of Citizenship and Immigration
The IRB will have procedural rules for the submission of information with respect to pre-removal risk assessments, as they have for everything else.
4:15 p.m.
Liberal
Jim Karygiannis Liberal Scarborough—Agincourt, ON
You're asking me to vote on a piece of legislation, sir, and I don't know what and how it would affect us. You see the difficulty I have.
4:15 p.m.
Conservative
The Chair Conservative David Tilson
Mr. Karygiannis, we are going around in circles here. Obviously there's going to be some time before we get to clause-by-clause. You've dealt with this issue quite thoroughly.
Could I suggest that somewhere along the line you have a chat with Mr. Dykstra? Maybe the two of you could talk. You're asking whether an amendment could be made to the act or whether an amendment could be made to the regulations. I think it's up to Mr. Dykstra to comment on that.
Could I suggest that we move on to another issue and that you have an opportunity to discuss those things with him?
We'll go to Monsieur St-Cyr, Mr. Dykstra, and then to Ms. Chow.
4:15 p.m.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
I would like to come back to a technical issue for a better understanding. Amendment G-5 relates to section 114. That clause, in all its subsections--114(1), 114(2), 114(3) and 114(4)--deals with the effects of the decision, with the possibility to cancel or reverse a decision and the effect of such a reversal. In the original process...
4:15 p.m.
Conservative
4:15 p.m.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
First, I want to talk about section 114 of the present Immigration and Refugee Protection Act. Currently, the minister makes a decision and, very logically, under subsections 114(2) or 114(3), can reverse that decision. You can correct me if I am mistaken. The possibility to issue a protection decision would be transferred to IRB but the minister would still have the right to cancel or reverse that decision.
Am I correct in thinking that this would be the result of the amendments submitted by the government? If so, can you tell me why, when the right to make that decision is being transferred to IRB, the right to reverse that decision is not also transferred at the same time?
4:20 p.m.
Manager, Program Development, Department of Citizenship and Immigration
The amendment specifically refers to persons described in subsection 112(3). Those are the cases that will be retained within the jurisdiction of the minister—serious criminals, human rights violators. It is those who are excluded from refugee protection under article 1F of the refugee convention.
Those are the types of situations that will be dealt with by the minister. If the minister, having heard the person's story in writing or orally through the delegate, is tricked into making a decision on the basis of misrepresentation or fraud, the minister has the authority to undo that decision.
4:20 p.m.
Bloc
Thierry St-Cyr Bloc Jeanne-Le Ber, QC
If I understand correctly, subsection 114(2) of the present Immigration and Refugee Protection Act deals with decisions made on the basis of paragraph 113(c), which itself refers to subsection 112(3), both dealing with cases remaining under the authority of the minister. Is that correct?
Do you want me to start again?
Subsection 114(2) states that:
(2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of the removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d) and the regulations, the grounds on which the application was allowed to and may cancel the stay.
Here you refer to decisions made under paragraph 113(c), where you say:
(c) in the case of an applicant described in subsection 112(3)
So, subsection 114(2) deals with persons referred to in subsection 112(3), that is to say persons inadmissible on grounds of security or organized criminality or who were excluded on the basis of section F of Article 1 of the Refugee Convention, etc.
Is the amendment aiming at making sure that the power of the minister will only apply to those persons referred to in subsection 112(3)? Am I correct?
4:20 p.m.
Manager, Program Development, Department of Citizenship and Immigration
Subsection 114(2), which we are not amending in these motions, refers to cases under subsection 112(3) that remain within the scope of the minister's jurisdiction, where the circumstances that gave rise to the stay of removal have changed. So the person may still be inadmissible for serious criminality and there might still be some risk in the country of origin, but the minister concludes that the balance of risk to the individual and danger to the Canadian public has shifted. Hopefully in most cases where the risk has been reduced for the person who is being removed, the person can be removed. That's subsection 114(2).
In subsection 114(3), which is being amended to impose the same restriction on the minister so that it only applies with respect to those subsection 112(3) cases, those serious cases, the minister will retain the authority to vacate a decision that the minister has made, or the minister's delegate has made, on the basis of fraud or misrepresentation.
4:20 p.m.
NDP
Olivia Chow NDP Trinity—Spadina, ON
So let us push this a bit. A refugee is from Burma, part of Aung San Suu Kyi's team. Obviously, deporting that person back may not make sense because the regime there might lock him or her up. However, because this person was involved in maybe the army or whatever, they may not be admissible according to, say, CSIS...maybe. But they obviously shouldn't be deported.
So if the minister made that decision that this person shouldn't be deported, has the right to stay, but not get landed status, this amendment will change it so that if the minister feels that the information given to him by this refugee claimant—let's say he's not really part of the Aung San Suu Kyi group, he's actually working for the government—then he actually can cancel his previous decision to not deport the person?
4:25 p.m.
Manager, Program Development, Department of Citizenship and Immigration
I would agree with everything you've said except the suggestion that in some way the legislation changes anything. The legislation says that where the minister grants refugee protection, or grants a stay of removal, and learns later that the decision was based on fraud or misrepresentation, the minister can vacate his or her original decision.
That doesn't change in this bill. It simply takes out of the minister's jurisdiction--to vacate the granting of protection--those cases where the board is responsible for the decision.