Citizenship and Immigration Committee on June 1st, 2010

[The Chair, Conservative, David Tilson]

Mr. Karygiannis, then Monsieur St-Cyr.

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

Thank you, Chair.

Right now, as it stands, before somebody is removed he has a PRRA. That's handled by either CBSA or the CIC.

[Peter MacDougall]

The CIC.

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

The CIC.

However, before the person is removed, if we'd like to intervene or if we must intervene, we intervene with CBSA as well as CIC, and ask for a minister's intervention.

If this gets removed from CIC and goes to the IRB, how would something like that happen? It will be technical. It will be with a body that we have very little contact with, except to find out where the process is. When we contact IRB, we cannot make submissions; we cannot even talk to somebody who's looking at it, as it stands right now. The only thing we can do is to find out when the hearing will be.

So if you move this to IRB and we want to make submissions, wouldn't it be a quasi-judicial body that members of Parliament would have to make representations to?

[Peter MacDougall]

I'll ask my colleague Mr. Butt to respond.

[John Butt, Manager, Program Development, Department of Citizenship and Immigration]

I think you're right in terms of the impact it would have on representations to the Immigration and Refugee Board, but the starting point for our pre-removal risk assessment is the decision by Canada Border Services Agency that the person is ready for removal. There is a removal order. They have all the documentation. They have flights in progress. The last step is to offer the individual the opportunity to apply for a pre-removal risk assessment.

That part won't change. The person will get the application form from the Canada Border Services Agency officer. Instead of submitting the application to the Department of Citizenship and Immigration, the person will submit their application to the Immigration and Refugee Board.

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

Right, Mr. Butt, but what I'm trying to get to is that right now a member of Parliament or his office can pick up the phone and call CIC and make an intervention, or suggest or even bring to light some recent changes in a country. But in moving it from CIC to IRB, moving it to a quasi-judicial body, how will that affect the member of Parliament's office or the MP getting in touch with the IRB?

[John Butt]

If the issue is the information with respect to changed country conditions, that information would be submitted by the applicant to the Immigration and Refugee Board. If the member of Parliament has information that would be pertinent to the individual's case, then as long as he or she ensures that the person is aware, the person can make those submissions in their application to the Immigration and Refugee Board. If you're looking at a suspension or a stay or deferral of removal, you will still be able to ask the Canada Border Services Agency to intervene in that way.

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

Mr. Butt, let me try this one more time. The people who will be making the decision will be IRB members or IRB officials. As such, they're quasi-judicial individuals whom we, as members of Parliament, cannot talk to. If that process is moved from CIC to IRB, would our offices be exempt and be able to talk to them, or would our offices not be able to talk to them because they're quasi-judicial bodies?

[John Butt]

I would have to say that you're correct, that they cannot talk directly to the decision-maker. The person would have to make his own submissions, with assistance from the member of Parliament or from counsel, as the case may be. So the information would have to be put through the individual in his or her application.

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

Thank you.

[The Chair, Conservative, David Tilson]

Monsieur St-Cyr.

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

Mr. McDougall, you said in your presentation that the IRB procedure for PRRA would be similar. First, you said it would be “identical” but then you corrected yourself and said that it would be“similar”. Obviously, we know that it is not identical since we are talking about the same organization.

Could you ensure the committee that, were we to adapt each component to take into account the fact that cases will be dealt with by IRB instead of CIC, it would basically be the same process, the same rights and the same opportunities? At the same time, should we not use this opportunity to improve the process? There will obviously be things to improve with the process. Are there new elements that would be introduced? If we have to make administrative changes, let us make sure that they are done properly. In that case, what are the improvements that could be made?

[John Butt]

Basically, in the current process, where the citizen and immigration officer, acting on behalf of the minister, makes decisions, a lot of the administrative steps in the decision-making process are reflected in the policy manuals of the department. They are not spelled out in the act or in the regulations.

In the future, with a process before the Immigration and Refugee Board, a quasi-judicial tribunal, a lot more of that detail has to be spelled out, and it is the reason why there are extensive amendments in the proposed motions with respect to the process for the possibility that the minister has additional information that should be before the decision-maker, the possibility that the person may be inadmissible on serious grounds that had not been canvassed previously, etc. All of those things have to be built into the system in more detail because the Immigration and Refugee Board will proceed with its hearings in accordance with its legal mandate, so any restrictions or corrections or adjustments have to be spelled out in the bill.

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

I want to understand. You say that, currently, the minister controls a number of factors since he is the one ultimately who controls his department's implementation policies. When that is transferred to the Immigration and Refugee Board, he will lose that control. So, the additional elements that you are bringing are aimed at making sure that the necessary links are protected between his department and the board's decision.

[John Butt]

Yes, that is correct.

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

Thank you.

If the rules of the board were to change, the way PRRA is dealt with might change, just as it might change if the minister were to decide to change the rules now.

I have a concern. In terms of legislation, are there any differences or changes relating to the protection provided by the Act? Apart from transferring the responsibility from the minister to the board, are there any other changes?

[John Butt]

The motions set out the detailed procedures for transferring these cases to the board from the department, from the minister. It sets out the legal limitations on the jurisdiction of the board and where the minister might choose to intervene if the minister had information.

Certainly there will be more detail in rules made by the board with respect to procedures at any hearings or interviews that have to be held, but as I say, the motions spell out, in more detail than the act does today, certain steps in the process.

For example, in subsection 112(3), it provides a restriction on access to a pre-removal risk assessment for persons who have been determined “to be inadmissible on grounds of security, violating human or international rights or organized criminality”. The proposed motions include specific steps to suspend the consideration of a pre-removal risk assessment where the matter of inadmissibility on these grounds is being considered by the immigration division of the Immigration and Refugee Board. That's the sort of thing that has to be built into the legislative package. Today, the minister's delegate could simply wait, and is expected to wait, until the immigration division has completed its work. For the board, you have to spell out in the legislation that they will wait in this case and will not wait in that case, as the situation may be.

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

I have a final question because I want to leave time to the other members.

Let us deal with the final decision. Can we expect that, in the great majority of cases, it will be the same final decision at the end of the day? With this new process, there is no reason to believe that a positive decision would become negative or vice versa.

[John Butt]

Presuming the same evidence and information before the decision-maker, one would expect the same decision in the future as one would get today on a particular case. If the person has demonstrated evidence that he or she would be at risk, they will be granted protection. If the evidence is insufficient to establish that risk, the person will not get protection.

[The Chair, Conservative, David Tilson]

Mr. Karygiannis.

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

Thank you, Chair.

In the quasi-judicial body, if submissions from a member of Parliament or lawyer are made to the minister's office, does the minister then have the power to ask that the PRRA be held? Or once it's in that stream, can absolutely nobody touch it because it's a quasi-judicial body?

[John Butt]

Once the application is made to the Immigration and Refugee Board, the jurisdiction to hear the case and make a decision rests with the board. The minister cannot take that back unless the situation were one where the minister decided that the person should be allowed to stay in Canada--for example, on humanitarian and compassionate grounds, in which case there would no longer be a removal process, and the process before the board could be terminated. But if the minister is simply asking the board to delay or is seeking a different process before the board, no, the minister has no more opportunity to do that than does a member of Parliament.

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

So once a PRRA has been started and the application is put in, with the extenuating circumstances, H and C, is there a mechanism in the legislation that would allow the minister to take that back, or is it that once the process started it's on its way?

[John Butt]

Subject to the restrictions or bars that are in Bill C-11, the authority of the minister to act on humanitarian and compassionate grounds, even after the pre-removal risk assessment decision has been made, will not have changed.