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Evidence of meeting #35 for Citizenship and Immigration in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was detention.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Andrew Wlodyka  Barrister and Solicitor, As an Individual
Jennifer Egsgard  Member, Human Rights Watch Canada
Bill Frelick  Director, Refugee Program, Human Rights Watch
Meb Rashid  Medical Doctor, Crossroads Clinic, Women's College Hospital
David Matas  Lawyer, As an Individual
Christine Hyndman  Manager, Immigration Policy, Policy and Research Group, Department of Labour, New Zealand
Stephen Dunstan  General Manager, Settlement and Attraction Division, Immigration Group, Department of Labour, New Zealand
Fraser Richards  Acting Director, Legal Business, Legal Group, Department of Labour, New Zealand

3:30 p.m.

Conservative

The Chair Conservative David Tilson

I call the meeting to order. This is the Standing Committee on Citizenship and Immigration, meeting number 35, on Tuesday, May 1, 2012, pursuant to the order of reference of Monday, April 23, 2012, Bill C-31, An Act to amend the Immigration and Refugee Protection Act and other acts. This meeting is televised.

We have two witnesses with us today. The first witness is from Vancouver, British Columbia, and is a lawyer.

Andrew Wlodyka, you will be speaking for up to 10 minutes, sir, if you wish.

3:30 p.m.

Andrew Wlodyka Barrister and Solicitor, As an Individual

Thank you very much.

3:30 p.m.

Conservative

The Chair Conservative David Tilson

Thank you.

The members of the other group are from Human Rights Watch. One is from Washington, Bill Frelick. He is the director of the refugee program. From Toronto we have Jennifer Egsgard.

Good afternoon.

3:30 p.m.

Jennifer Egsgard Member, Human Rights Watch Canada

Good afternoon.

3:30 p.m.

Conservative

The Chair Conservative David Tilson

The two of you will be sharing up to 10 minutes.

Mr. Wlodyka, you may speak. We appreciate your coming.

3:30 p.m.

Barrister and Solicitor, As an Individual

Andrew Wlodyka

Thank you very much.

Members of the committee, it's a pleasure to speak with you this afternoon. I'm a lawyer. I used to be a member of the Immigration Appeal Board and assistant deputy chair of the Immigration and Refugee Board. I'm speaking to you from a perspective both as an advocate representing refugee claimants and other people who have had to go through the immigration system, as well as a decision-maker who has had to wrestle with the difficulty of making a decision that affects people's lives.

I also understand, because of this perspective, that it is a difficult challenge to deal with a refugee determination system that is expeditious and fair. I believe the government should be commended on its effort to reform the refugee determination system. Clearly, in my judgment, the status quo is not an option. It is unfortunate that these changes were not made after the Singh decision back in the mid-1980s. The taxpayer might have been saved a lot of money, and enormous backlogs might have been avoided. But then, in my judgment, it's a case of better late than never.

Another comment I have is that refugee determination must be looked at in the context of protection and not in terms of immigration. These two systems are very different. As much as possible we should respect those differences. For people who wish to immigrate to Canada, there is a process of selection. There is also an avenue of exercising humanitarian and compassionate grounds. Both can be made within Canada and outside of Canada. Refugee determination is a very different process. One should as much as possible keep these things separate.

I do not have a problem, then, with requiring people to choose a path to follow. The one-year bar until an application can be made on humanitarian and compassionate grounds is, in my judgment, not an unreasonable one.

I would also encourage the government as much as possible to make the process of refugee determination outside of Canada as transparent as the process inside Canada. Proposed section 99 of Bill C-31 certainly allows claims from both inside and outside of Canada.

Unfortunately, my bitter experience has shown that refugee claimants who have made claims outside of Canada certainly are not getting the same kind of fair treatment that they obtain inside Canada. A review of decisions is much more difficult and an enormous challenge. Those people or organizations who help refugee claimants abroad know all too well the challenge of challenging decisions made by visa officers outside of Canada. I would certainly encourage that these officers receive the same kind of training that board members, both public servants and GIC appointees, receive.

I have other comments in relation to the loss of permanent residency status.

I certainly don't have a problem with people losing their permanent resident status if their refugee claims are vacated due to fraud. The provisions that deal with that, in my judgment, are fair and reasonable.

The area in which I have a problem is that there is a provision dealing with loss of permanent resident status under section 19, where there is a cessation of refugee protection. An application is made, and then determination is made under various criteria laid out, including change of circumstances.

In those kinds of cases, I think it would be grossly unfair to remove permanent resident status from persons unless there's some kind of tie-in to a ground of inadmissibility, such as misrepresentation or criminality. In those cases, those permanent residents should have recourse to the immigration appeal division to deal with the case, both on legal grounds and on humanitarian and compassionate grounds, as set out in subsection 63(3) of the current legislation.

With respect to time limits for proceeding with refugee claims, we have a seemingly greater emphasis on expediting cases of claimants from designated countries of origin—manifestly unfounded claims and such. This is very problematic. I think all refugee claimants, whether they come from designated countries of origin or not, should have similar timeframes for initiating their claims. A 28-day time limit, in my judgment, is tough enough. To impose a much harsher timeframe, especially given the rather precarious state of legal assistance in this country.... It varies from province to province. In our province, in British Columbia, legal aid is not very handy to have; it's very difficult to obtain.

I would certainly encourage the government to think of some other process—rather than just giving money to provinces, creating a system whereby there could be some assistance at the initial stage. In my judgment, the more assistance you provide at the beginning, the more likely the whole process will be fair to the very end.

With respect to the power to designate a country or part of a country or class of nationals, I do not have a problem with the minister having this power, as long as the criteria are transparent. In my judgment, the process undertaken should be something akin to making regulations. This means that interested parties should be able to comment; it's not sufficient just to publish the designation in the Canada Gazette. The minister is accountable to Parliament and to the public. I don't have as much confidence in these “experts”; I'd rather put my trust in parliamentarians and ministers, who in the end are accountable. Therefore, with respect to this provision, I do not have a problem.

I know there's always a concern about criteria irrelevant to the determination, such as trade considerations, military considerations, alliances. None of those are set out in the proposed regulations, and in my judgment, decisions made based on such things would be subject to legal challenge. Frankly, that should be sufficient deterrence to prevent the minister from going down that road.

I also do not have a problem with having different refugee determination regimes for different classes of refugee claimants. After all, the bottom line is that even the ones from designated countries of origin would have access to the Federal Court, which they've had since 2002, with leave. It is only with respect to other refugee claimants that additional access to the refugee appeal determination system is provided, which the DCOs would not have. But in my judgment, the present system of judicial review by the Federal Court for those kinds of cases is more than adequate.

The regulatory provision for a stay proceeding has been removed, but there is still access to the Federal Court, provided that the tripartite test is met; therefore, a stay order can still be obtained. It would be another thing if there were to be no right of judicial review or no hearing at all for DCO-type cases, and that's certainly not the case here.

After all, we're trying to design a system to expedite removal of people who do not satisfy the criteria for refugee status. To leave it the way it is would simply perpetuate the problem, and we would never be able to have a system that works, unless we finance it at enormous expense, which clearly the public is not prepared to tolerate.

In terms of the bar to making applications for permanent residency for illegal arrivals, in my judgment a five-year bar is excessive; three years is more than sufficient. After all, we're talking about individuals who have made a meritorious refugee claim. To prevent them from applying for five years, in my judgment, is overkill.

If a person wants to apply for permanent residence, there are options other than making a refugee claim. First of all, they can make the refugee claim outside of Canada; then there would be no bar to reuniting the family members. They could apply outside or inside on humanitarian and compassionate grounds without going down the refugee stream. They can also choose the immigration selection system for making an approach to get immigration status.

Clearly, we need to have some kind of a system to deter people from using the route offered by people smugglers. It's always easy to say we can prosecute people smugglers—

3:40 p.m.

Conservative

The Chair Conservative David Tilson

Mr. Wlodyka—

3:40 p.m.

Barrister and Solicitor, As an Individual

Andrew Wlodyka

—but up to now the track record of prosecutions has not been great.

3:40 p.m.

Conservative

The Chair Conservative David Tilson

Sir, perhaps you could wind up, please.

3:40 p.m.

Barrister and Solicitor, As an Individual

Andrew Wlodyka

It's been quite dismal.

3:40 p.m.

Conservative

The Chair Conservative David Tilson

Your time has expired.

3:40 p.m.

Barrister and Solicitor, As an Individual

Andrew Wlodyka

I have only a couple more comments.

3:40 p.m.

Conservative

The Chair Conservative David Tilson

Is that a promise?

3:40 p.m.

Barrister and Solicitor, As an Individual

Andrew Wlodyka

One comment is about detentions.

I would ask the committee to look at section 82 of IRPA dealing with the Federal Court on security matters in terms of the detention regime there. That should be more than sufficient. I think a one-year detention is excessive.

Finally, a comment responding to RAD, the appeal provision. RAD should only be used to either confirm or not confirm decisions. We shouldn't have a case going back for another kick at the can by the RPD. That just delays the process.

3:40 p.m.

Conservative

The Chair Conservative David Tilson

Thank you, sir.

3:40 p.m.

Barrister and Solicitor, As an Individual

Andrew Wlodyka

I apologize for being slightly over time.

Thank you very much for allowing me the opportunity.

3:40 p.m.

Conservative

The Chair Conservative David Tilson

Thank you.

Ms. Egsgard, Mr. Frelick, is one of you going to speak or are you both going to speak? Do you want me to flip a coin?

3:40 p.m.

Bill Frelick Director, Refugee Program, Human Rights Watch

We'll both speak.

3:40 p.m.

Conservative

The Chair Conservative David Tilson

Okay. We'll give you five minutes, Mr. Frelick.

3:40 p.m.

Director, Refugee Program, Human Rights Watch

Bill Frelick

Right. Okay.

My name is Bill Frelick. I'm the program director for refugees at Human Rights Watch. We are an international non-governmental organization, a completely private organization that takes no government funding. We don't represent clients in court. We are independent human rights monitors, not service providers.

My background is that I've been the director of our refugee program for the last six years. Prior to that, I was the director of Amnesty International's refugee program. Prior to that, I was the director of the U.S. Committee for Refugees and Immigrants, where I edited World Refugee Survey from 1986 to 2002.

I'm going to address the questions of children and the Australia model, and briefly touch on designated countries of origin. Jennifer Egsgard, a private attorney and a member of our Canada committee, will talk about the detention provisions in permanent residency.

Moving to the question of children, the Convention on the Rights of the Child defines children under the convention as “every human being below the age of eighteen years”. Bill C-31, with respect to the detention provisions, says that “designated foreign national” applies to people “16 years of age or older on the day of the arrival”.

There is no rationale given in the bill or in the commentary on the bill from the government about why 16- and 17-year-old children, defined as children in the Convention on the Rights of the Child, are included here.

The reason we're particularly concerned about this is that article 37 of the Convention on the Rights of the Child basically says that there should be no arbitrary detention of children, and that if children are to be detained, it should be “as a measure of last resort and for the shortest appropriate period of time”.

Our view is that in Bill C-31, the detention of children is really a first choice rather than a last resort. Instead of it being for the shortest period of time, it in fact is mandated to be for a year, with some few exceptions that in practical terms don't look as though they would occur.

We also believe that this detention is arbitrary, which is barred under article 37(d) of the Convention on the Rights of the Child, because of the lack of a right to challenge the detention before a court or other independent, impartial authority, notwithstanding the limited Federal Court review that's in Bill C-31.

I think the main thing to keep in mind when looking at the Convention on the Rights of the Child, and in fact looking at the human rights of children, is article 3 of that convention, which says, “In all actions concerning children...the best interests of the child shall be a primary consideration.”

I think you really need to ask yourself, when you look at the purposes of Bill C-31 with respect to children, whether this is being done in the best interests of the child. If you look at the literature on the impact of detention on children in particular.... We cite in our written testimony studies by the college of general practitioners of the mental health impact on children, which is quite severe.

Perhaps I can take this segue to talk about Australia. The parliamentary commission there, just in March of 2012, issued a massive study on the impact of detention policies there, and cited study after study of the negative impact on particularly children.

So the question arises whether Australia and their treatment of migrants should be a model for Canada. The answer is no. In fact, Australia is not even a model for Australia. The mandatory detention, which went into effect in 1999, by November of 2011 had pretty much been lifted, with bridging visas to bring people from the excised offshore detention facilities.

It was shown that the number of people who had been arriving irregularly by boat in 1999, at time of that legislation, was 1,000. Two years later, when it was in full force in 2001, there were more than 5,000 arrivals.

3:45 p.m.

Conservative

The Chair Conservative David Tilson

Mr. Frelick, if you're going to give Ms. Egsgard some time, you'll have to conclude soon.

3:45 p.m.

Director, Refugee Program, Human Rights Watch

Bill Frelick

Okay, fine.

3:45 p.m.

Conservative

The Chair Conservative David Tilson

There is a point of order, Mr. Frelick. Hold on. Sorry.

3:45 p.m.

Liberal

Justin Trudeau Liberal Papineau, QC

I'm just not sure. Are these not two separate witnesses from different...or is it one subset of the same?

3:45 p.m.

Conservative

The Chair Conservative David Tilson

Mr. Trudeau, incidentally, welcome back. I'm glad to see you.