Citizenship and Immigration Committee on June 9th, 2010

[Peter MacDougall]

The principle of safe country of origin from the outset was to provide priority processing. So what we would further explore in regulation is for those groups of nationals, both safe country of origin and people manifestly unfounded.... We would seek in the regulations to provide a non-suspensive judicial review. That is to say, when someone files application for leave to the Federal Court, their removal is stayed for the period in which the decision needs to be made about leave. We would seek in the regulations, for manifestly unfounded claimants and for safe country of origin nationals, to have their judicial review application become non-suspensive. In essence, they could be removed during the leave application process.

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

Thank you.

[The Chair, Conservative, David Tilson]

Ms. Chow and then Monsieur Coderre.

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

Let's say Mexico is a designated country. They applied and were refused. However, they believe they have humanitarian and compassionate grounds. At what point can they start their application?

I guess maybe during the hearings or soon after the hearings they discover they're really in the wrong stream. They can go to humanitarian and compassionate grounds. They might be rejected or may be accepted. If they are accepted, then they apply for landed status. But if they are rejected, do they have access to Federal Court appeal?

[Peter MacDougall]

You're asking if someone from a designated country of origin has access to the Federal Court after a negative refugee decision?

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

After humanitarian and compassionate grounds, yes.

[Luke Morton, Senior Legal Counsel, Manager, Refugee Legal Team, Legal Services, Department of Citizenship and Immigration]

Yes, everyone will have access to judicial review.

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

However, if they have gone through the appeal division and they've been turned down, and they then apply, do they at that point still have the possibility to go to Federal Court?

[Luke Morton]

Yes, they will have access to go to Federal Court, And for the two categories we were talking about, the manifestly unfounded and the safe country of origin, the difference is it could be proposed that they would not benefit from a legislative stay of removal. They could file their leave application, but they could be removed.

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

Right. In the case of humanitarian and compassionate grounds, that happens anyway, right? So we're not delaying the removal process if they apply through Federal Court.

[Luke Morton]

Well, currently there is a legislative stay of removal for certain groups of people. From your Refugee Protection Division, if you're seeking judicial review you benefit from a legislative stay of removal. But as you said, for humanitarian and compassionate, you don't benefit from a legislative stay.

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

Right. And if they have exhausted the situation.... Can you explain about who would be seen as manifestly unfounded? How do you define who they are?

[Luke Morton]

The key is it's defined in the definition.

Is it clearly fraudulent...?

[Peter MacDougall]

Yes. It's in BQ-5.01. The definition being used here is that the manifestly unfounded complainant is one whose claim is clearly fraudulent.

[Luke Morton]

And as Peter mentioned, that's consistent. That language is taken from the United Nations High Commission on Refugees EXCOM Conclusion No. 30.

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

And fraudulent would be one aspect of their claim, or are all aspects of their claim fraudulent?

[Luke Morton]

It's hard to predetermine how the Refugee Protection Division would determine that. It would be up to the board member. But the test is in law that it's clearly fraudulent. That's as much as we can say today.

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

Okay--i.e., no basis for it....

[Luke Morton]

I can't speak for the Refugee Protection Division.

[The Chair, Conservative, David Tilson]

Okay. We're debating these two amendments at the same time.

Monsieur Coderre.

[Denis Coderre, Liberal, Bourassa, QC]

Mr. Chairman, I have a number of questions. From time to time, I hear you use the expression "safe countries of origin" and "designated countries". Do you a draw a distinction between a safe country and a designated country, and, if so, what is it?

[Peter MacDougall]

No, I make no distinction. In fact in the G-2 government amendment it introduced the use of the word “safe”, and in the amended BQ-5.1 it moves back to the original language of “designated”, which is in Bill C-11. So I do not make a distinction now.

[Denis Coderre, Liberal, Bourassa, QC]

I'd like to know whether, in your mind, a designated country is a safe country?

[Peter MacDougall]

Yes.

[Denis Coderre, Liberal, Bourassa, QC]

If it's a safe country, that means you're drawing a distinction between a refugee from a safe country and a refugee from another country, aren't you?