Citizenship and Immigration Committee on June 1st, 2010

[The Chair, Conservative, David Tilson]

Okay, Monsieur St-Cyr.

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

I know that I may be the first member to ask this question but I want to make sure that I understand the transition. So, I would put the question differently to you.

The Act as the government intends to amend it would include a number of provisions that would be favourable to the claimants, who would have more rights and more opportunities. This is basically related to the Refugee Appeals Division. On the other hand, some provisions would be unfavourable to claimants in that the possibility to appeal or to use additional procedures that existed in the past would be limited.

Are there any cases when a claimant would be forced to accept unfavourable provisions, that is to say provisions shutting down doors that were open previously, and doing that even before the claimant had access to a favourable decision, namely from the Refugee Appeals Division?

[John Butt]

In terms of going from perhaps an H and C application that's denied and then having the opportunity to apply for refugee protection thereafter--is that the scenario you're talking of?

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

No, I am just trying to see if people would be subject to more restrictive provisions, if I may use that word, when they have not had the opportunity to appeal to the Refugee Appeals Division.

[John Butt]

The transitional provisions with respect to humanitarian and compassionate considerations provide that the bar on access to an application on humanitarian and compassionate grounds after a refugee protection division decision does not apply during the period between the royal assent and the coming into force of the provisions with respect to the refugee appeal division. So that provides an opportunity for mitigation when a person is rejected by the refugee protection division and does not yet have access to the refugee appeal division.

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

So, a claimant applying under the current system, which does not provide for an appeal, will continue to have access to the traditional PRRA and will be able to apply under humanitarian reasons, or for a temporary resident permit, etc.

[John Butt]

I'm not sure I understand the connection between H and C and PRRA, except currently they're both done by the same officer at the same time. But the person's rights on transition are that up to the point where the RAD provisions come into force, the person whose claim is rejected after royal assent will have access to H and C consideration if they wish to apply, and if they are subject to removal from Canada, they will have access to a pre-removal risk assessment.

After the coming into force of the RAD provisions, the persons whose claims had been determined prior to the coming into force would not automatically have access to RAD at that point, but they would continue to have access to pre-removal risk assessment.

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

You refer to the point that will determine which system will apply. Will it be when the claimant makes an application or when the decision is rendered? Could it happen that an application made under the old system will lead to a decision also made under the old system? Will the coming into force of the new provisions mean that the application will be dealt with under the new system?

[John Butt]

If a claim made today, or a claim made after royal assent up to the point of coming into force of the RAD provisions, is started, it will be transferred to the new process if the refugee protection division has not yet started to hear evidence with respect to that particular claim. The person whose claim is pending and who is still waiting for a hearing date will be dealt with under the new system. If the hearing has started and the refugee protection division member has heard evidence, then that refugee protection division member will continue to hear that case to the end.

The decision made by either the GIC refugee protection division member or by the public servant refugee protection division member after the coming into force of the RAD provisions will be subject to appeal before the RAD.

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

I would like to talk about the date of coming into force mentioned in the last section of the Bill, section 42. Whether in amendment G-12 or in the original Bill, I read that, generally speaking, the provisions will come into force two years after royal assent or, in the meantime, at a date or dates fixed by order in council.

However, there are exceptions, such as sections 3 to 6, 9, 13, 14, 28 and 31, to which are added sections 32, 39 and 40 because of amendment G-12. The date of coming into force of those sections is not specified. Does that mean that they will come into force as soon as the Bill gets royal assent?

[Luke Morton]

The Interpretation Act governs this situation, and it comes into force on royal assent.

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

One may say that the default position, generally, if it is not otherwise specified, is that the sections will come into force when the Bill gets royal assent. In this case, most of the sections will come into force two years after, except those that are not specified or that are excluded.

I needed a clarification. I may have misunderstood when you were answering my colleague, Mrs. Chow. Which transfer will come first, the PRRA or the Refugee Appeals Division?

[John Butt]

The RAD provisions, or all of the provisions with respect to the asylum process, are spelled out in amendment G-12 in new proposed subsection 42(1). All provisions, except those that are specified there, will come into force not later than two years after the date on which the bill receives royal assent. That is to say, the provisions that are spelled out there will come into force on royal assent.

The transfer of the pre-removal risk assessment will come up to 12 months further in time, after the coming into force of the provisions that create the refugee appeal division and create the public servant refugee protection division. That, as I said before, is to give the board an opportunity to absorb a very large piece of work with respect to the creation of the RAD, etc., and then, thereafter, to take on the task of the transfer of the pre-removal risk assessment function.

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

So, your answer to my question is that the Refugee Appeals Division will be transferred first and then, a year later, the PRRA.

[John Butt]

Yes, that is correct.

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

That's it for me.

[The Chair, Conservative, David Tilson]

Are there any other questions?

Ms. Chow, go ahead.

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

That only has an impact on the administrative side. It has no impact on the one-year bar or on whether it's on H and C. It's really about who actually administers it. A year after RAD is set up, it will be transferred from CIC to the IRB.

[John Butt]

That's right.

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

Right. Thank you. That's for PRRA...?

[John Butt]

Yes. It provides a further 12-month delay before the PRRA is transferred to the board, but it makes no further changes with respect to the pre-removal risk assessment process. All of those provisions will have come into effect up to 24 months after royal assent.

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

Thank you.

[The Chair, Conservative, David Tilson]

Are there any other questions or comments from the committee?

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

Not in terms of the government's recommendations. Are you open for other questions?

[The Chair, Conservative, David Tilson]

Now's the time to do it; sure, we still have time.