Thank you, Mr. Chair. Good afternoon to the members of the committee.
I have provided you with two written briefs. The first deals with the bill's changes to the refugee claim process. The second addresses the policies underlying the anti human-smuggling provisions of the bill. There is a detailed biography in the first package.
You will see that I have worked as a lawyer representing refugees. I was a member of the Immigration and Refugee Board of Canada for more than six years deciding refugee claims. I was then the chairperson of the Immigration and Refugee Board for three years, with a managerial perspective on managing the resources of the refugee claim system. Finally, I have been an academic studying refugee systems and the international protection of refugees.
In making a recommendation I want you to know that I view the refugee system from all four perspectives. Certainly, I do not view myself as a member of any lobby in any particular direction. My fundamental allegiance is to the Canadian refugee system, one that makes decisions that are correct, fair, fast, and efficient.
In the time allowed, I will address only three aspects of the bill—the short time limits of the refugee claim process, the lack of an appeal for some claimants, and the government's deterrent strategy for group arrivals. My first brief includes a summary analysis of Canada's refugee system. It provides a brief description of the current system, some of its flaws, some of the reforms recommended by Bill C-31, and four recommendations that come out of that.
In regard to the refugee claim process itself, I must say candidly that the time limits are simply too short and will undermine its fairness and its efficiency. Refugees will not have a realistic opportunity to tell their story. A 15-day limit for claimants to file their basis-of-claim form is simply not enough time. In my brief at pages 4 and 5 I outline all of the steps that a refugee claimant has to take in order to file that form.
Please imagine a refugee claimant who arrives at Pearson Airport and makes a claim. They do not speak English. They know nothing of the city or Canadian culture. They don't know where to live. They don't know how to use public transport or how to use a cellphone, which they may have. They have very little money, and they don't understand the refugee system. Within 15 days they are expected to find a competent lawyer, see if they can get legal aid approval, instruct the lawyer appropriately for the lawyer to draft, through an interpreter, the information and deliver it to the Immigration and Refugee Board.
The result of a 15-day limit, in my view, will be more unrepresented claimants and more mistakes in the written form. Poorly drafted and incomplete statements make more work for a board member. Members depend on accurate information to prepare for the hearing. Poorly prepared hearings waste hearing room time and induce mistakes. I recommend that you grant 30 days to provide the written statement to the board. It is a modest gesture, with dramatic results.
For claims inside of Canada at the CIC office, there's a different procedure. I refer to it in my brief, and you can ask me questions about it if you wish. For an appeal to the refugee appeal division, there will be 15 working days to file and complete the appeal. Once again, it is simply not enough time. We cannot assume that it will be the same lawyer representing the claimant at the appeal. Some claimants are already unrepresented, and candidly, some claims are lost because of poor legal representation in the first place.
Under our current system, the time allowed for judicial review applications is 45 days. It has been the experience of counsel over many years that it is not enough time. By contrast, the refugee appeal division members will have 90 days to make their decision. I'm telling you that 15 days is far too short. I recommend 45 days in order to file and complete the appeal. Again, you can ask me questions about that.
For the designated country of origin claims, hearings are scheduled for 30 days after delivery of the claim form. This is an insufficient amount of time for claimant and counsel to obtain and deliver the evidence. The most important evidence is claim-specific. It's usually located in the country of origin, and it's often difficult to obtain. In addition to that, medical and psychological reports are often by far the most germane evidence for the board member to consider. I think you would all understand that it's not possible to obtain those, particularly psychological reports, within 30 days. If the evidence is not available, the results will either be adjournments of hearings—which is inefficient—or unfair decisions based upon incomplete evidence. I recommend that we return to the Balanced Refugee Reform Act, which allowed 60 days for the DCO hearings, and 90 days for regular hearings.
The minister has said that the faster process is necessary to deter fraudulent claimants. In our current system, to process a claim, it takes four to five years from date of claim to date of removal, and that is obviously far too fast. This is not a justification, though, for imposing unrealistically short timelines. Claims that are decided in six to nine months are more than adequate to deter manifestly unfounded claimants. For regular claims, 12 months would be adequate.
I can tell you, based on 25 years of experience in the field, that claimants, whether fraudulent or not, often invest everything in trying to get to Canada. They mortgage their homes. They borrow money. If those people return to their country in five to six or seven months, I assure you that you will not see a second wave of fraudulent claimants from that country. Superfast turnarounds of 45 days or 75 days are simply unnecessary and, in my view, they will be unfair in the sense that incorrect decisions will be made.
In regard to section 36, which defines the six categories of claimants who will not have a right of appeal, firstly, I applaud the government for implementing the refugee appeal division, which has been in the law since 2002 but was never implemented. The lack of an appeal has been one of the critical flaws in Canada's refugee system. This will certainly help to ensure that the board's decisions are well reasoned and reliable.
Refugee claims are not easy to decide. The evidence is inaccessible. Claimants are fragile witnesses. Mistakes are made, inevitably, by the best of board members—and candidly, I must say that some members fall below that standard.
I think you heard Professor Rehaag this morning refer to some of his reports. They are definitive reports, showing that for the individual acceptance rates of IRB members, the variance between the individual rates is unacceptably broad. The unavoidable fact is that for some of the decisions, they are simply not reliable. The solution to that is to have a refugee appeal division appeal for each one of those decisions.
In my brief, I refer to why, for some categories of claimants, it is even more important that they have an appeal. You can ask me questions about that if you wish.
In conclusion, on the issue of fast process, I'll just simply make three points: allow for modestly longer time limits, to give claimants a fair and reasonable opportunity to prove their claims; allow an appeal to every claimant to catch the mistakes that are inevitable, especially with a faster claim process; and have prompt removals of failed claimants. Those timelines are more than adequate to eliminate fraudulent claims while ensuring fair and reliable decisions.
My second brief deals with the attempt to deter group arrivals by way of one-year mandatory detention—or up to one year—and long-term separation of families. I've left the arguments on legality and constitutionality for others.
Mr. Kenney has stated that the purpose of these provisions is to deter asylum seekers from using irregular means to seek protection in Canada. The assumption that mandatory detention will deter asylum seekers from coming to Canada in groups unfortunately has no basis in fact. Australia imposed mandatory detention on all boat arrivals in 1994. Over the following several years, the number of arrivals increased, not decreased.
As well, my brief provides you with the statistics on the number of claims in a chart. It also shows the work of UNHCR researchers, which shows that mandatory detention does not deter asylum seekers.
There are reasons why mandatory detention does not work. There are four principal reasons. First, there were studies done of the detainees in Australia. The majority of the detainees did not even know about the detention policies, the reason being that their primary source of information was the smugglers. Even the minority who did know about the detention policies did not believe them. They thought, “Australia, this is a country where there is the rule of law and democracy.” They did not think it could be that bad—