Citizenship and Immigration Committee on March 1st, 2012

[The Chair, Conservative, David Tilson]

Ladies and gentlemen, we'll call the meeting to order. This is the Standing Committee on Citizenship and Immigration, meeting number 24, Thursday, March 1, 2012.

This meeting is televised. Pursuant to Standing Order 108(2), we continue our study on “Standing on Guard for Thee: Ensuring that Canada's Immigration System is Secure”.

We have two witnesses. Regarding our first witness, I see an empty chair. Apparently he has gone to the wrong place. So we'll proceed with you, Professor.

At the moment we have one witness, who is Professor Dauvergne. Am I pronouncing that correctly?

[Dr. Catherine Dauvergne, Professor, Canada Research Chair in Migration Law, University of British Columbia, Faculty of Law, As an Individual]

Yes. Thank you.

[The Chair, Conservative, David Tilson]

She is the Canada research chair in migration law. Her most recent book is Making People Illegal: What Globalization Means for Migration and Law.

Thank you, Professor, for coming to speak to us today. If you could have up to ten minutes for an opening statement, we would appreciate it.

[Dr. Catherine Dauvergne]

Thank you very much. It's really an honour and a privilege to have this invitation. I'm grateful for it.

Given the ambit of the study, I would like to use my opening statement to talk about five points in the hopes that these points will cover some areas that will be of interest to the committee.

The areas I will talk about are a recent study on refugee exclusions, immigration detention in Canada, gender in Canadian immigration law, human rights in the security context, and lessons from Australia.

Prior to coming to the University of British Columbia a decade ago now, I was for five years a faculty member at the University of Sydney, where I also taught immigration law and refugee law. I completed my PhD as well in Australia.

Before I continue, can everyone hear me?

[The Chair, Conservative, David Tilson]

We can. Thank you very much.

[Dr. Catherine Dauvergne]

Okay. Perfect.

Starting with the refugee exclusions project, last year I published the results of a study of 11 years of Canadian refugee decision-making. The focus of the study was the data available from both CIC and CBSA as well as Federal Court decisions about refugees.

The central questions in this study were, first, how many people have been excluded because of concerns about terrorism, and has the exclusion because of concerns about terrorism changed given heightened enforcement effort and heightened enforcement dollars since 9/11?

There are really two main findings of this study. One, the numbers of potential refugees who are excluded because of terrorist concerns are infinitesimally small—less than 0.01%—given the high number of claimants who come into the country every year. We did find, however, that the understanding of what counts as terrorism has grown considerably since 2001, so that a number of people may now be captured in the category of a potential terrorist when they are not involved in any activity or in any formal membership.

So despite growth in the category, the growth in numbers is very small. The highest number of exclusions in any year was in 2004, with 114 exclusions, and only a smaller number of those were related to terrorism.

One of the inferences that comes out of this study is that a relatively easy-to-access refugee claims system like Canada's enhances our security because it provides an incentive for people to come forward and identify themselves to the state. In Canada we have a comparatively small amount of clandestine migration compared with the United States and the United Kingdom. One reason for this is that many people who might otherwise go underground or disappear in the country because they don't have immigration status are attracted to the possibility of having a successful refugee claim. So this provides an opportunity to have a very clear identity picture of those individuals and to perform security checks upon them. That was not directly a focus of the terrorism study, but was one of the points that was made as we conducted the study over a two-year period.

I have, as part of my speaking notes, some of the precise figures from that study. If committee members are interested and would like to follow up during the question period, those are available. I can also make the study available to you later.

The next topic that I thought I would touch on, because of the strong security linkages, is the role of immigration detention in Canada. Immigration detention in Canada is an area where, I think it's reasonable to say, we simply do not have granular-enough data to have a clear picture of how immigration detention here is used.

For example, while we know the numbers of people who are detained and the average length of detention, which is not terribly long at around 20 days, we don't know, for the most part, and can't differentiate in those statistics at present whether those people are asylum seekers, whether they're failed refugee claimants, whether they're people slated for removal from the country, and, if they're slated for removal, which category they're being removed under. So there's quite a lot about immigration detention that we simply don't know, and it would be very useful to instruct the CBSA to enhance its data collection in these areas.

One of the things that is recorded in our current data is the reason for people being detained. We know that just under 6% of all people in immigration detention are there because of some kind of security concern. What accounts for the other 94%? Well, the two main reasons for detention are that people don't have proper identity documents when coming into the country or they are considered a flight risk. In other words, they are considered not likely to want to show up for the next immigration proceeding they are facing, whether that's a hearing or a removal proceeding. So the majority of people in immigration detention are not convicted or suspected criminals in any way.

We do have some children in immigration detention in Canada. Just over 500 children were detained last year, mostly with their parents.

There are specific immigration lock-ups in major Canadian cities, but a significant number of people in immigration detention are actually just in provincial jails.

We also know that detention of refugee claimants is not authorized by international laws, so just because somebody is making an asylum claim doesn't provide any legal basis to detain them, either in international law or in Canadian law at this point. Another basis is needed.

We do have quite stark data on people who arrive on boats. The people who are boat arrivals tend to be detained for about 15 times longer in terms of days than are people who arrive in the country any other way. So whether they're regular or irregular arrivals, boat arrivals attract the highest rates and length of detention. This is despite the fact that there is very little to differentiate those arrivals in terms of the eventual outcomes. That is, when we have gone through an episode of a boat arrival, and all the processing is done, those people do not necessarily raise any greater number of security concerns than do people who arrive in the country in other ways.

On the whole, I have to say the detention review scheme operated by the Immigration and Refugee Board at present is a very good and successful scheme. It tends to have clear priorities and a very clear and effective regulatory mandate, and it tends to work very well to ensure that immigration detention does not continue for an unduly long time.

There are two areas of immigration detention that are probably appropriate for attention in your study. One is that our detention system doesn't cope very well with mass arrivals. Certainly on the legal representation side it is very hard to get people appropriate legal representation when 200 or 300 people arrive at once. So the question of the appropriate response to a mass surge is a live question that needs study.

There's also another pocket, a very small pocket, which is what to do when people are found to be unremovable from the country for whatever reason. There's only a handful of these people, but Canada doesn't have a very good record in comparison with relative countries like the United Kingdom or the United States. We are still prepared to keep people in detention indefinitely, whereas both the United Kingdom and the U.S., with the exception of Guantanamo Bay, have found ways to release people from this kind of immigration detention.

I think I have about three minutes left.

[The Chair, Conservative, David Tilson]

Actually, you have a minute left.

[Dr. Catherine Dauvergne]

Okay, so I'll tell you a few things about women in the Canadian immigration system.

About one-third of refugee claimants are women, but women are 5% more likely to be successful than men are at making a refugee claim. Women are more likely than men are to be excluded under the safe third country agreement because of their mode of arrival. Women's refugee claims are more likely than men's to be negatively impacted by a “one size fits all” speeding up of refugee claims, although of course speeding up that process is a good policy objective overall. Women are more likely than men are to come from countries that would generally be considered to be safe, because of the nature of gender-related persecution.

I'll leave it at that. I would be happy to answer questions about any of those topics or other areas I could possibly assist you with.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Dr. Dauvergne.

Our other witness has appeared...I hope. Has he?

[A voice]

Yes.

[The Chair, Conservative, David Tilson]

He's not on the screen.

Dr. Petryshyn, are you there?

[John Petryshyn, Lawyer, As an Individual]

Hello.

[The Chair, Conservative, David Tilson]

You're there. I can see you.

[John Petryshyn]

Excellent. It's John Petryshyn.

You know, Mr. Chairman, maybe security is an issue, but the House of Commons communication is one hell of an issue. They sent me to the wrong place. This place has not been functioning on Notre Dame Avenue since July.

[The Chair, Conservative, David Tilson]

We've been talking about that all week, sir.

Mr. Petryshyn, you're a practising lawyer in Winnipeg, and I'd like to welcome you to the committee. You have up to ten minutes to make a presentation to us.

[John Petryshyn]

Thank you so much, Mr. Chairman. It's a pleasure to be here.

[The Chair, Conservative, David Tilson]

Yes, indeed.

[John Petryshyn]

Briefly, in addition to simply practising immigration law in Winnipeg, I was born in Berlin, Germany, during World War II—in April, to be exact—and I spent three years in a DP camp in Germany until my family was allowed to enter Canada in 1948. Since that time, I've been very much interested in immigration and refugee matters pertaining particularly to people from eastern Europe, and now, in my law practice, from all over the world.

Another important issue is in terms of the worldwide desire to enter Canada. I've read some of the material from the previous hearings and you can see the number of people who have been turned down. Nevertheless, there's a tremendous desire to come to Canada, and the various categories come into play.

I know that from time to time the government is very much concerned not only about those coming here under certain circumstances—such as refugees—but I do believe there are even issues pertaining to family class, such as spouses who do not intend to cohabit with a spouse upon arrival. That is an issue, and I think the government's concern should be to deal with it, but simply to send the person back if they do not cohabit or if they leave the marital home does not take into account a potential danger to the spouse while cohabiting. It's rare, but it does happen. Just simply to remove someone carte blanche because they no longer cohabit with their spouse leads to all kinds of difficulties.

However, Mr. Chair, I want to go on to a particular area in which I deal with clients who are immigrants who set up businesses in Canada: the transport business. The transport business hires transportation drivers, long-haul drivers. These people have a tremendous ability to help us out in Canada. There's a tremendous shortage of long-haul truck drivers in Canada.

Up to now the status has been—maybe your committee is better aware of this than I am—that there are three processes. There are the P and P program put on by the Canadian government and called Partners in Protection; C-TPAT, put on by the U.S. customs and clearance security system; and FAST, also put on by the U.S. program agency. It requires a time of three years to a month and that then takes into account inspecting the firm that may have been involved in applying to obtain a driver. They take a look at the actual yard where the motor vehicles are placed and where they are parked, and there is a monitoring of who enters the premises. This is a security-intense system in the sense of the possibility of drug trafficking and other kinds of things that can be put on trucks.

So there is this process that is similar or akin to the NEXUS program. If you enter U.S. airports, this is allowed and is being monitored, allowing an expedited processing of trucks. You hear quite often about the amount of time it takes to clear a border. Well, here are three programs—one Canadian and two American—to try to facilitate the expedient entry of truck drivers and trucks into the United States and into Canada.

Also, in addition to the security of trucks entering and exiting, they particularly monitor the kind of load the truck is carrying. Is it mining, explosives, high tech, or perhaps munitions? You will even have, for example, motor vehicles from security forces travelling behind or in front of a truck that is entering Canada or the United States.

So that is sort of a background as to what is in place now pertaining to an attempt to provide security in the system of expediting transportation across our common borders.

Secondly, Mr. Chairman, there's the entry of foreign workers into Canada. As all of you are probably aware, the Canadian employer obtains from Services Canada, HRSDC, the right to hire one or more workers as may be necessary. The foreign worker applies overseas, obtains a work visa based on his or her credentials, and the employer does a telephone interview or uses some other means to validate the driver coming to Canada.

Then there is the approval of HRSDC for the worker to enter Canada. The person goes to a consulate to obtain a visa. He or she arrives in Canada. My clients tell me, “John, sometimes they don't show up”. Therefore, Mr. Chairman, the employer contacts HRSDC and says, “This person did not come, and I have the opportunity to hire four, so therefore that leaves me one more person to hire”.

The loophole in this is that the employers rarely, if ever, phone Immigration.

Mr. X has arrived in Toronto, he's bound for Winnipeg, and he doesn't even bother calling. The employer doesn't do anything about it. He just goes out and gets somebody else. Where is this person? Who is this person?

So that's an issue that should be taken into account. There should be a cross-section, or an opportunity to deal with the issue, between HRSDC and particularly Immigration when the person obtaining the visa has landed at a point of entry.

Another point that arises, my clients tell me, is that on the other side, if someone does come in, they will receive a call from the point of landing and be asked, “Where is your company? We've Googled it, and your head office is in some house. We don't know who the president is.” And so on.

It becomes a bit of a problem if people weren't anticipating being telephoned or weren't notified in advance, or at least given 24 hours' notice, that they would have to provide information. I say that because not everybody has a big office or a big international conglomerate of trucks. Some operate out of their homes as their corporate headquarters. They still may have 10 or 15 long-haul trucks, but that's where they operate out of. If you don't find them on Google, they find many a time that there's....

Well, the word “harassment” was used. I wouldn't go that far, but a great deal of information is being requested of the employer right at the point of landing, when the perspective employee is standing there and it's difficult to reach all that information at the same time, and yet clearly it is necessary to do so.

I'm not sure about my available time, Mr. Chair.

I have discovered, and my clients tell me, that the issue is about arrivals of qualified foreign workers who do not show up at their place of employment. The employer doesn't track them down and Immigration has little or no input to try to locate them. I don't know if they even make the list of people who eventually have to be tracked down.

Those are my brief comments.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Petryshyn and Dr. Dauvergne. Your comments are very helpful to the committee.

We will now have some questions from members.

Mr. Opitz, a member of the government, is first.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Mr. Chair.

Mr. Petryshyn, hello to you. You began talking about spouses arriving in Canada and not cohabiting with the spouse. Can you elaborate on that a little more? I was a little confused at the front end when you started talking about that issue.

[John Petryshyn]

Well, it's a family class sponsorship, and many a time, depending on the nature and the background of some nationalities, they may have met only briefly, or for the first time, when they got married. Therefore, let's say you go through a process of sponsoring the person to Canada and this question arises: the person comes, discovers that he or she is not compatible, does not like the other spouse after a very brief time together of maybe a week or two, and the immigrating spouse to Canada—not the sponsor, but the applicant coming to Canada—says, “He's threatening me”, or whatever the circumstances are, and they leave, or they charge the spouse with assault and so forth. At times, I have had both sides of the street, within a very short period of time—sometimes even a week or two—where the spouses have not cohabited and one leaves the other.

I know there's an issue pertaining to how we'll address this issue. I've heard, or at least I've read in the media, that if they do not cohabit, then the spouse who came to Canada, the applicant, the sponsored spouse, may be removed from Canada because he or she is breaching the terms and conditions of their coming to Canada as a sponsored spouse to begin with.

I say that's a possibility, and I don't discount that, but you really have to take a look at the fact that at times there is abuse, there is assault, or there may be a problem with drugs or alcohol. If that's an issue the government has considered, fine, but please take a look at other issues that may ameliorate that person not being able to live with that sponsoring spouse.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

But what you're really discussing is basically arranged marriages, which doesn't really lend itself to a long-term, bona fide relationship. So isn't this a situation that could lend itself very clearly towards marriage fraud, and therefore fraudulent immigration?

[John Petryshyn]

Arranged marriages in certain cultures are the norm. You can go back to, and I can take you to, clients who have an arranged marriage, met each other for a week, and ten years later are living together, with children and so forth. That's the nature of that certain culture. You can't just discount arranged marriages.

What I'm saying is that before someone is removed, we should be taking a look at the circumstances, at why that spouse or that person coming to Canada left. Is it a fraudulent one? The person may never have intended to live with the person, and that is a fraudulent marriage. However, if they did intend to live, but circumstances arose where there was danger to the spouse coming to Canada—or something—that should be taken into account.

[Dr. Catherine Dauvergne]

Mr. Opitz?

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Yes. If you want to weigh in on that, please go ahead.