Citizenship and Immigration Committee on May 1st, 2012

[Andrew Wlodyka]

It should improve the process because you're eliminating the avenue in terms of recourse to the Federal Court, in the sense that you're limiting them to the Federal Court. They don't have access to RAD. You've removed the regulatory stay provisions.

People who lose their refugee claims would have to satisfy the Federal Court on the tripartite test of an arguable case that the balance of convenience and irreparable harm issues favour the claimant, otherwise they'll be removed from Canada. Expeditious removal will serve as a deterrent. If it's a deterrent, there will be fewer claims from countries that normally do not produce refugees, and therefore more resources will be devoted to those countries where refugees are produced.

If the minister is consistent with his approach, there may be problematic areas. Countries such as Mexico, and the Romas, from countries like the Czech Republic, Hungary, and other parts of eastern Europe will be difficult cases because there are successful claims regarding both of those.

It will be interesting to see how the minister determines it. That's why I'm in favour of a process that will allow public input, to make sure the determination is consistent with the legislation laid out by Parliament and that it is fair to all concerned. But it should it have a favourable impact.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Right, sir.

Given what you just said, would you then agree that the effect on genuine refugees would be generally positive and allow them to pass through the system more fairly and quickly?

[Andrew Wlodyka]

Yes, because more resources would be devoted to that system. They would have the benefit of RAD as well; therefore, the Immigration and Refugee Board would be able to catch those mistakes because they have the power to substitute decision-making. Where there are mistakes made at the first level, they will be corrected at the second level, and we'll have a way of spending most of our resources—our scarce resources—on where they're needed the most.

In my judgment, that would be in the public interest.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Would you think the designated safe countries of origin provisions we find in Bill C-31 go far enough?

[Andrew Wlodyka]

In my judgment, they are fair in terms of the criteria. Where I have a problem is that the minister is proposing to simply issue an order that will be published in the Gazette. In my judgment, that's not sufficient.

The approach to designated countries of origin should be akin to that for regulations. Therefore, there should be a prepublished list of those countries. There should be a justification as you have for regulations. There would be opportunity for the public to comment, and therefore there would be safeguards in terms of any regulations. This is a very important step. You're taking rights away from people. The process of doing so should be as transparent as possible, in the sense that for those who come from countries where refugee claims are not prevalent, this determination is made in a transparent manner by people who are accountable to Parliament and to the public.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

All right, sir. Thank you.

In terms of the current system, can you give us perhaps some practical examples of how you think the current system might be flawed?

[Andrew Wlodyka]

First of all, it's an access system for everyone. Everyone accesses it, whether they have manifestly founded claims or manifestly unfounded claims. You have a system that goes through a refugee determination process at the first instance, which would occur here. The only difference is that the first instance decision-making under the new legislation will be done by public servants as opposed to GIC appointees.

There is no RAD in the current system. There's only judicial review by the Federal Court. The Federal Court legislation sets out strict criteria, but it can't be a substitute for a de novo review.

[The Chair, Conservative, David Tilson]

Ms. Sims has some questions.

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

Thank you very much.

My questions are going to be more on the designated country of origin, so perhaps Bill or Jennifer would be willing to address those.

Whenever we start talking about designated countries of origin, it seems as though some people have ideas about countries they consider to be safe. We've often heard that as long as you have a democracy, it is a safe country, but we know that is not true.

Can you detail some of the issues that have come up regarding countries that could be on the safe list, such as Mexico, and what kinds of challenges face certain communities, such as women, ethnic or religious minorities, and those who identify as LGBT?

[Bill Frelick]

Yes, I'd like to respond to that question. It's a very good one.

In fact, my work as the director of our refugee program is global work, but much of my own research has been focused on Europe. I've done field work in Italy, Malta, Greece, Turkey, Slovakia, Hungary, Ukraine, and I'm probably missing a few off the top of my head.

What I've seen, particularly with the focus of my work, which is on asylum seekers, migrants, and refugees, is a high degree of xenophobia and street violence, in many cases directed against darker-skinned people, migrants in particular.

I've also been in the detention centres in most of those countries I just mentioned—including Greece, in particular, I'd like to point out, which is an EU country—and the conditions of detention there are absolutely inhuman and degrading. I myself documented cases where people were brutally pushed back across the border into Turkey. I also have been in the detention centres in Turkey, which are horrific.

We just published a report a couple of months ago on racist and xenophobic violence in Italy. Just last week we published a report on the discrimination against Roma, Jews, and other national minorities in Bosnia. These are reports that are essentially fresh off the press about, in the case of Italy, violence directed against dark-skinned people primarily. This is something we're seeing in Hungary and in many other places as well.

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

We've heard a lot from some of the other witnesses before us that one of the elements in the bill is that, first, you're going to be kept in detention for up to a year, and, second, for five years you're not going to have any kind of status or access to travel documents. We've heard that's a contravention of international law.

Could you explain to us what that particular aspect contravenes?

[Jennifer Egsgard]

Both of those provisions will take effect once a refugee is designated as a designated person. It's our position that it punishes refugees based on their irregular arrival, because the designation occurs when there is an irregular arrival. That, in and of itself, is prohibited under international law.

As to the five-year ban on adjustment to permanent resident status, this also contravenes article 34 of the Refugee Convention, which states that:

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

So a five-year bar on application for permanent residence, which would then lead to seven to ten years' delay in being reunited with family members, would contravene that provision. It would have a negative impact on the right of separated refugee families to reunite, delaying reunification for seven to ten years. The right to family unity is considered by UNHCR to be a fundamental aspect of effective protection of refugee children. We know that children, especially unaccompanied children, are some of the most vulnerable migrants imaginable. The delay in family reunification could damage both the welfare of the children and their families, as well as the integration prospects for the migrants concerned.

The delay in family reunification would also violate the UN Convention on the Rights of the Child. It states in article 10 that:

...applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

The delay in obtaining permanent residence, and then the further delay in ability to sponsor family members, would contravene the UN Convention on the Rights of the Child as well.

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

Other witnesses before this committee, such as Sean Rehaag, have explained the extreme inconsistencies in decisions of the IRB. Some judges refuse to believe that any refugee claim is valid.

If a bona fide refugee is not given a fair hearing initially, what could happen if they are sent home without the right to an appeal?

[Bill Frelick]

The case that comes to mind immediately is one we just saw in Sri Lanka, where the U.K. returned a group of rejected asylum seekers, essentially saying, hey, the war is over and it's safe to go back, and they were sent back to Sri Lanka. Our researchers in Sri Lanka were able to document that they had been detained and burned with cigarettes. This just happened in the last several months. Actually, we did two press releases, one just yesterday, because Minister Bowen of Australia is in Sri Lanka right now.

The consequences of negative decisions are life and death. These are serious decisions to be made. That's why we have strong reservations about the designated country of origin, which will not give people who are so designated the right of appeal and will not suspend their removal during that time.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Frelick.

Mr. Trudeau.

[Justin Trudeau, Liberal, Papineau, QC]

Mr. Wlodyka, the government side has asked you directly if you are supportive of the idea of a designated country of origin, and you have said that it is a smart allocation of resources on the condition that it be appropriately transparent and accountable in light of the choices and decisions being made.

As it is written in Bill C-31, are those safeguards transparent and adequate enough for you to be able to support this provision?

[Andrew Wlodyka]

In my judgment, the criteria are sufficient. The process of designating the country, or part of it, or a group of nationals is not adequate. As I indicated in my previous remarks, a process akin to regulatory changes allowing for public comment as a pre-publication in the Gazette would be a stronger safeguard to make sure that the designation is as transparent as possible, allowing outside feedback.

Simply issuing an order that is published in the Gazette, in my judgment, is not sufficient.

[Justin Trudeau, Liberal, Papineau, QC]

Thank you very much for clarifying that particular caveat on your support for that provision.

I have a second question. When we have boats filled with migrants arriving, such as the Sun Sea and the Ocean Lady, is it fair to qualify those asylum seekers as queue jumpers?

[Andrew Wlodyka]

Are you directing your remarks to me?

[Justin Trudeau, Liberal, Papineau, QC]

Yes, sorry, I'm following up with you, sir.

[Andrew Wlodyka]

All right. Sometimes I wonder.

No, I don't think it would be. If they make out a successful refugee claim, they're certainly not queue jumpers. However, they have chosen to utilize the services of people smugglers. There has to be some kind of deterrence mechanism to prevent them from doing that. There are two ways of doing it. One is making it easier to make the refugee claims from outside of Canada. The second is making sure, if they do use that route, that the detention provisions are as humane as possible. I noticed that even for a security-related risk in the legislation that exists now, you have a better regime to review detention of illegal migrants.

[Justin Trudeau, Liberal, Papineau, QC]

Thank you. I'm sorry to cut you off. My time is extremely limited, and I got the answer I was looking for in that no, they're not queue jumpers.

So when we have politicians talk about refugee seekers as queue jumpers, or asylum seekers as queue jumpers, it doesn't actually apply, because we have a process for refugees, not a queue, as we have for the immigration system.

Commenting on the deterrent—and perhaps this can go to any of the three experts before us—detention for a year, or holding back citizenship rights for five years or even for three years, as you suggested, Mr. Wlodyka, is that enough to deter someone who has, to use your words, sir, a meritorious claim? If people are genuine refugees, fleeing for their lives from torture, from persecution, from which their state cannot protect them, is the idea that they might be in jail for a year or have certain limitations on their citizenship a significant deterrent? For people who are genuinely fleeing for their lives, would that actually be effective in this situation?

[Andrew Wlodyka]

I will respond to that first, and I'll leave my colleagues to respond as well.

If the case is meritorious, clearly you should have a system whereby their determination is made as quickly as possible by the appropriate tribunal. If you cloud the system up with people who do not have meritorious claims, the resources will not be able to get to these people quickly enough. So we can take them out of the system. In that sense, the designated countries of origin and all of this you have to look at globally, in the sense that I would err on the side of making sure that the refugee determination system's resources are put to those people who need it.

In this particular case, with illegal arrivals, they're probably going to come on the boat anyway, no matter what, but at least if their case is meritorious.... In my judgment, not all illegal arrivals are meritorious. Many in fact do not have legitimate refugee claims, but for those who do and are willing to take the risk, as long as our system selects them quickly, that is the best way to go.

[The Chair, Conservative, David Tilson]

Thank you very much.

Mr. Menegakis has some questions.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Mr. Chair.

I want to thank our witnesses for appearing before us today.

Mr. Wlodyka, I'd like to continue the line of questioning with you, if I may, sir. There are many things in Bill C-31 that address the real issue of trying to facilitate the process time of legitimate refugees who are seeking asylum coming to Canada from countries in which, of course, they're facing persecution of some kind. The new measures in the bill finalize a refugee claim from an average of 1,038 days to 45 days for claimants from designated countries of origin, and 216 days for all other claimants. Certainly, someone who is fleeing their country for fear of their life would greatly benefit from reducing the amount of time they'd be in the system in Canada. I think that's one of the key goals of the bill.

What impact do you think bogus refugees have on genuine refugees who have to wait longer?