Citizenship and Immigration Committee on April 26th, 2012

[Jinny Sims, NDP, Newton—North Delta, BC]

I mean the ones that you have proposed in legislation.

[Jason Kenney, Conservative, Calgary Southeast, AB]

We understand them very well.

I can tell you, when I became minister in October 2008, our officials briefed me on how they had spent years working on proposals to improve and reform our asylum system but how those proposals had never been pursued for political reasons.

Since that time, since 2008, I can tell you there has been relentless policy work and widespread consultation looking at international practices to come up with a system that's fast and fair. So yes, we understand the implications. The implications are very simple. The implication is that a bona fide asylum claimant under the new system will get protection within Canada in a couple of months—two to three months—as opposed to two years, and that fake claimants will be removed in less than a year rather than in four, five, or six years. The majority of claimants whose claims are initially rejected by the IRB will for the first time have a full fact-based appeal at the refugee appeal division.

So we do understand. The implications are that we will have a faster and fairer system, which, we are confident, will to some extent reduce the number of false claimants coming to Canada, particularly from designated countries.

[Jinny Sims, NDP, Newton—North Delta, BC]

A strand flows throughout the legislation, Minister, and that is the concentration of more and more discretionary power in your hands. Why do you believe in concentrating excessive and arbitrary power in the hands of one person? Don't you think that transparent, publicly accountable laws should be the basis of our system? You said earlier that we needed fairness, openness, and transparency, and yet with this legislation there's going to more and more power in your hands.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I don't accept that characterization, Ms. Sims. There have been a lot of suggestions from some opposition MPs and others that the minister will be interfering in asylum decisions and arbitrarily rejecting them. Let's be clear. Every decision on every asylum claim will be made by an independent, highly trained member of the quasi-judicial IRB, either at the initial instance at the RPD or at the refugee appeal division. The vast majority of claimants will also likely seek access to the Federal Court.

At no stage does the minister intervene in the consideration of a claim. The only increase in the authority of the minister, who is accountable to Parliament for the exercise of such authority, is in the designation of countries. We believe it's necessary to be able to respond quickly to emerging waves of highly organized false claims.

I'll give you one example. The Czech Republic had a visa exemption in 1995, followed by a huge wave of unfounded claims, which resulted in the reimposition of the visa requirement in 1997. We granted them an exemption in 2008, followed by another huge wave of unfounded claims and a visa imposition in 2009.

We would like to get back to a Czech visa exemption. We'd like to have a European-wide visa exemption to facilitate trade, tourism, and travel. But we won't be able to do so unless we can quickly put in place streamlined, accelerated provisions, such as through the designation power, and that's why we believe the minister needs that authority.

Oh, you're now becoming acting chair, are you? These are musical chairs.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Absolutely, minister. Thank you for your patience.

Now we'll turn to my colleague.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Madam Chair.

Mr. Minister, you've repeatedly said that there are no new powers in Bill C-31 with respect to the loss of protection of status and/or the removal of permanent residents. Many would interpret that as somewhat misleading and somewhat incorrect for an individual who comes in and is designated as an irregular. After being in Canada for three years and the circumstances change, they will lose their eligibility requirement to become permanent residents. Would you not agree that is a change from current practices?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Oh yes, it is from current practices, I'm sorry.

But this is reflective of legislation we introduced in the last Parliament. That's nothing new in Bill C-31. One of the most important aspects of the anti-smuggling provisions of Bill C-31 and its two prior bills is to indicate that if you get positive protection status as a smuggled migrant, having arrived as an irregular designated arrival, you will not get immediate permanent residency. Yes, you will have to wait five years for permanent residency.

One of the reasons we did this is from our having looked at the Australian experience. For several years they had what was called a temporary protection visa for smuggled migrants, during which period the number of smuggling boats that arrived in Australia went down dramatically. The moment they restored immediate permanent residency visas for smuggled refugees, the number of boats went up into the hundreds per year. So we thought this was the single, most effective way to dissuade people from paying smugglers to come to the country.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

One of the issues I've raised on numerous occasions during the debate is the whole idea of the advisory committee that would provide the recommendations as to what countries would be deemed safe countries. I think the different stakeholders had a fairly decent consensus, and there was a consensus at one time among all the political parties here in Ottawa.

What has changed or would the minister be prepared to accept an amendment that might look at bringing that back?

[Jason Kenney, Conservative, Calgary Southeast, AB]

We would certainly be open to looking at and considering any constructive amendment, as has been the case in the past.

The reason we decided to streamline the designation process in this bill is that we were concerned that running the designation process through committee and a more lengthy process would make it more difficult for us to respond quickly to emerging waves of unfounded claims. It would also make it more difficult for us to designate a country the moment we provided it with a visa exemption.

Members of your party ask me all the time to get back to a visa exemptions for certain countries. If we want to do that prudently, in my view, we need to consider using the tool of designation quickly—immediately in some cases—based on the criteria.

I just want to close by saying that there are criteria—a country with at least 30 claims; a 75% rejection rate, meaning that 75% of the claims or more have been abandoned, withdrawn, or rejected; or one from whom 60% of the claims have been withdrawn or abandoned.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I have one last quick question. When do you anticipate that biometrics will be put into place for countries such as India, the Philippines, and others, where visas are required to come to Canada to visit?

[Jason Kenney, Conservative, Calgary Southeast, AB]

We'll be releasing the list of the initial countries included in the temporary resident visa biometrics program probably later this year. That has not yet been completed. I do not, however, anticipate at this point that those countries will be on that initial list. They would be at some point in the future. Eventually, we expect it to be a universal requirement.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

You actually have another 45 seconds.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

That's a bonus.

We had the Canadian Association of Refugee Lawyers make a presentation. I think a number of them have taken offence to the fact that many of the Conservative members seem to see them as a biased group. Many of them are not actually practising lawyers, yet that's the assertion. I wonder if you would provide comment on that issue.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Generally speaking, immigration lawyers have the most direct pecuniary interest in the system. That is not to say that they don't have valid opinions. They are practitioners and know the details of the system, but they also make their living from it, typically. That's relevant context.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

I hate to be rude, minister. Thank you very much. You were very succinct in your answer.

I'm going to turn it over to Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Madam Chair.

Thank you to our special guests here today, and to Mr. Kenney as well, first and foremost.

I'm just going to ask you to tell us a little bit about the new refugee appeal division. I have to say that I have a bit of trouble understanding why the previous government, the Liberal government, opposed the creation of a new refugee appeal division. Having said that, I guess my question is really two-fold. First and foremost, I would like you to tell us a little bit about what this new body will actually do. Second, why did the previous government, the Liberal government, oppose this and its members probably still do.

[Jason Kenney, Conservative, Calgary Southeast, AB]

The Immigration and Refugee Protection Act was adopted in 2002. It included legislative authority to create a refugee appeal division at the Immigration and Refugee Board to mirror or parallel the immigration appeal division, which takes appeals on negative decisions from the immigration division.

So the idea was that refusals on asylum claims that were made by the refugee protection division would be appealable to this new fact-based appeal system. Parliament adopted that in 2002. The previous government, however, decided quite pointedly not to bring the RAD into force. The public record of my predecessors under the previous government suggests they thought it would be irresponsible to create the new RAD, as contemplated by IRPA, until there was streamlining of the asylum system, because they realized the system was broken. They realized it was taking us years to remove even manifestly unfounded asylum claimants. They realized there were people, I think, abusing our generosity. They didn't want to further incentivize that by adding yet another step in a multi-step process, because here is how the status quo works.

If you lose an asylum claim at the RPD, typically you make an application to the Federal Court for a judicial review of the negative decision. That takes nine, ten, or twelve months. If that's a negative decision, you then typically will file a pre-removal risk assessment. That could take several months. If that's a negative decision, you then seek leave to appeal that to the Federal Court. If that's a negative decision, typically your lawyer will advise you to file a permanent residency application on humanitarian and compassionate grounds. If that's negative—and it will have taken several months—you then go back to the Federal Court. If that's negative, you might then, with a particularly aggressive lawyer, make an application for a stay of removal, and then you might come back with the second PRRA. This is why it has been taking us four, five, six, and in some cases ten years or longer to remove failed asylum claimants.

I think the previous government was responsible in realizing that you couldn't put in place the RAD as a new level of appeal unless and until you streamlined all these other administrative post-claim recourses. That's the basic architecture of these reforms. What they will allow failed claimants to do—claimants whose claims are rejected by the RPD—is to file an appeal to the RAD within the prescribed number of days. They'll be able to go before an independent, highly trained decision-maker for a full quasi-judicial evaluation; they can present new evidence if it has arisen; and a decision will be made at the RAD. That will be available to the majority of failed claimants. It will not be available to those who are coming from countries not known to normally produce refugees, such as designated countries.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Minister Kenney.

Canada, as we know, is the most fair and generous country in the world with regard to our immigration system. We're sometimes compared to other countries, for example, western countries or other countries such as the United States or Australia

I'm just wondering if you can speak to this. After the full implementation of Bill C-31, will our system still be more generous and be the best in the world, or will it be less generous than the other countries we are compared against? I wonder if you could expand on that, please.

[Jason Kenney, Conservative, Calgary Southeast, AB]

How do you measure generosity? I would put it this way. To the extent that foreign observers have said that Canada's asylum system is a model from the point of view of procedural fairness and natural justice, it will be even more of a model because now we will have, for the first time ever in our system, a full fact-based appeal available and will be providing protection and certainty to bona fide refugees in about three months rather than two years, and we will be able to focus resources on bona fide refugees by hopefully deterring unfounded claimants through the faster removals process.

[Roxanne James, Conservative, Scarborough Centre, ON]

Can you give us an idea of how other countries, such as the United States or Australia, actually handle or deal with refugee claimants compared to Canada?

[Jason Kenney, Conservative, Calgary Southeast, AB]

Many of our peer countries, for example, have mandatory detention for all or most asylum claimants, whether or not they arrive in a smuggling operation. That's the case, for example, in Australia. In the U.K., all asylum claimants coming from designated safe countries are put under mandatory immigration detention, not just smuggled migrants. That's a very typical tool in the United States.

In some European countries, if you're a claimant coming from a designated country, you are given basically a pre-emptory paper-based review of your application—in some countries in something like 48 hours. I believe that's the case in Belgium, if I'm not mistaken, or in some of the western European countries. In Portugal, it's nine days.

By the way, António Guterres, who's the current United Nations High Commissioner of Refugees, is the former prime minister of Portugal who brought in an asylum system that has a nine-day turnaround on decisions for asylum applicants coming from designated countries.

I will not take any lectures from other democratic countries when it comes to the fairness of this asylum system we're proposing.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you very much.

May I ask how much time I have?

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

You have 32 seconds.

[Roxanne James, Conservative, Scarborough Centre, ON]

Okay, I'm going to be very quick.

Constituents in my riding are very surprised, if not shocked, when they hear that the single biggest source of refugee claims here in Canada is a country like Hungary. Is it correct that Canada was the destination for nearly nine out of ten refugees from Hungary? If that is so, why do refugees want to come to Canada as opposed to countries like Australia or the United States, or for that matter any other country in the world?

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Be very brief, Minister. The time is up.