Evidence of meeting #40 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 c-31.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Catherine Dauvergne  Canada Research Chair in Migration Law, University of British Columbia, Faculty of Law, As an Individual
  • Sharryn Aiken  Associate Professor, Faculty of Law, Queen's University, As an Individual
  • Kelsey Angeley  Student, B. Refuge, McGill University
  • Karina Fortier  Student, B. Refuge, McGill University
  • Alex Neve  Secretary General, Amnesty International Canada, Amnesty International
  • Béatrice Vaugrante  Executive Director, Amnesty International Canada Francophone, Amnesty International
  • Christoph Ehrentraut  Counselor, European Harmonization Unit, Federal Government of Germany
  • Excellency Bernhard Brinkmann  Ambassador, Delegation of the European Union to Canada
  • Anja Klabundt  Counsellor, of European Harmonization Unit, Ministry of the Interior, Federal Government of Germany
  • Roland Brumberg  Counselor of Unit Immigration Law, Federal Government of Germany
  • Ioana Patrascu  Legal Officer, Directorate General, Home Affairs, Asylum Unit, European Commission
  • Angela Martini  Policy Officer, Directorate General, Home Affairs, Border Management and Return Policy Unit, European Commission

8:45 a.m.


The Chair David Tilson

Good morning.

This is the Standing Committee on Citizenship and Immigration, meeting number 40, on Monday, May 7, 2012. The orders of the day, pursuant to the order of reference of Monday, April 23, 2012, are Bill C-31, An Act to amend the Immigration and Refugee Protection Act and other acts. This meeting is televised.

We have our first panel with us today; it has two members. We have Professor Catherine Dauvergne. She is the Canada research chair in migration law at the University of British Columbia Faculty of Law.

I understand you have a PowerPoint presentation, which we'll be watching.

Professor Sharryn Aiken, good morning to you. She is from the Faculty of Law at Queen's University. I went there, but I think it was so long ago my picture is down in the basement.

It's a pleasure to have both of you here. You each have ten minutes to make an introductory statement, and then there'll be questions from the committee.

Professor Dauvergne, you may proceed first.

8:45 a.m.

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

Good morning, and thank you for the invitation to speak with you this morning about Bill C-31.

I have been doing research into immigration law in Canada and Australia for nearly 20 years now. I teach refugee law in both countries.

This morning, I am going to talk about the mandatory detention system that is in effect in Australia.

I am also pleased to take questions on any aspect of Bill C-31.

I would like to thank you for having the presentation I will be making this morning translated for me. Given that 10 minutes goes by very quickly, I am going to begin by making a recommendation.

I'm just going to turn to the final point I want to make.

Australia now has more than two decades of experience with a mandatory detention scheme for people seeking refugee protection. Almost everybody seeking refugee protection is detained at some point. This system has not achieved its deterrence objectives. It has harmed many people and it has cost thousands of millions of dollars. In some respects, as I will detail momentarily, it is not as severe as the Bill C-31 proposals. For this reason I recommend to you that Bill C-31 be amended to eliminate the designated foreign national regime and to eliminate the mandatory detention scheme.

Recognizing that mass arrivals do provide serious challenges for any government, I recommend as an alternative to these provisions that you consider, in the case of a mass arrival, which is to be defined as a group of more than 50 individuals, where there is potential reason for detention under the current IRPA provisions—for example, when there is a difficulty establishing the identity of individuals—that if a group of more than 50 has arrived at the same time, the schedule for detention reviews be amended to allow for adequate and appropriate consideration of those individuals. The current detention regime requires reviews at 48 hours, 7 days, and 30 days, as you are aware. In the case of a group of more than 50 people arriving, it would be appropriate to alter this schedule to have an initial review at 20 days, a subsequent review at 25 days, and then move on to the ordinary scheme of reviews at 30-day intervals for any individuals who would still be detained after 45 days.

You will have heard from other witnesses about the first two reasons to reject the proposed mandatory detention scheme. This scheme is in breach of several provisions of the Charter of Rights and Freedoms, and it also is in breach of key international human rights documents to which Canada has long been committed. What I will focus my time on this morning is the evidence from Australia.

Australian evidence has now established that the detention regime there is not deterring people from seeking refugee protection in Australia. The evidence from Australia also demonstrates that this type of detention leads to lasting harms to individuals who are subject to it.

The mandatory detention regime for all unauthorized arrivals to Australia began in 1989. The majority of those who arrive in Australia without a visa are briefly detained, but most people are now granted a bridging visa—some, if they arrive at an airport, within a matter of days. For boat arrivals it's usually within two or three months. This bridging visa serves to release people from detention into the community.

Since 2001, Australia has had two separate streams for offshore arrivals and for mainland arrivals. As of January of this year, which is the midpoint of the Australian fiscal year, there were 4,783 people in one form or another of immigration detention, including community detention, which we would call release on conditions. The estimated spending for the current fiscal year on immigration detention in Australia is $629 million Australian, and that is pretty close to par with the Canadian dollar right now.

The Australian detention regime has been under active scrutiny since 2008. Some of the changes that have been made to this scheme include a move towards community detention rather than detention centres.

Children and families, as a matter of policy, are not to be held in detention centres. They are housed in special alternative places of detention, for the most part. The parliamentary inquiry that reported in March of this year found that there were still a few children in detention, but it's against policy.

Immigration detention is now officially considered to be a last resort in the Australian scheme, and all immigration detention is to be for the shortest possible time. The newest parliamentary inquiry in Australia is recommending a maximum of three months of detention time.

If we look at a comparison between Australia's immigration detention scheme and the scheme that would result in Canada from Bill C-31, we find that they are similar, in that there is a two-tiered system that is punitive to irregular boat arrivals.

In Australia, the time for people to be in detention is theoretically indefinite but presumptively shorter than 12 months. The Bill C-31 scheme is 12 months, but theoretically indefinite, so there's longer detention there.

Children and their families are not to be detained. The Canadian proposal, by contrast, says that young children will not be detained but may be separated from families.

In Australia, those who are in detention have priority processing for refugee claims in order to ensure the shortest possible time in detention. There is no such priority under Bill C-31 for people detained in Canada.

In the Australian scheme, anybody who is held in detention and making an asylum claim is granted legal aid for the preliminary and subsequent merit review stages of the asylum process. There's no guarantee of legal aid support in the Canadian proposal, Bill C-31.

It's also notable that Australian experience over the past 10 years has shown that a very high number of individuals who arrive on boats actually end up with refugee status; the appendix to the parliamentary report says 90%. I recall earlier figures suggesting it's closer to 80%, but that is still a very high acceptance rate, demonstrating that people who make these kinds of journeys are in fact those who are the most desperate.

The Australian mandatory detention regime has been found, in a number of inquiries, to breach both international and domestic human rights. It has not reduced the number of people coming to Australia to seek protection. There is a new study out of Monash University—which is not yet published, but which I heard about at a conference about three weeks ago—suggesting that the variations in rates of people arriving in boats in Australia can be completely attributed to conditions in sending countries, as well as weather conditions, rather than changes in Australian law.

There have been four major inquiries into the effectiveness of the Australian system since 2001, adding tens of millions of dollars to the cost. The evidence, which is now widely accepted—and this is reflected in the parliamentary report—includes the following: there are very high levels of suicide and other self-harm behaviours among the detained community; there are very high levels of depression and of post-traumatic stress disorder; these mental health problems affect the refugee determination process and make the process more difficult to manage; prolonged detention exacerbates previous trauma; and the detention regime harms family relationships and children's mental health in particular, whether the children are in detention or separated from their families because of detention.

Current developments in Australia include a commitment to move to community detention rather than closed facilities, both because of reduction of harm and because of reduction of cost, which has proven quite persuasive.

There was a temporary regime in Australia from 2001 to 2007 that restricted family reunification rights for people arriving on boats. This regime has been dismantled, so this is a departure from the direction that Bill C-31 is heading in.

There has been extensive work to improve conditions within detention centres. The bridging visa program has been expanded, with a sharp uptick since last November, so that more people are getting out of detention.

Last, the parliamentary report on Australia's immigration detention network was just released this past March—so a number of weeks ago—running to 356 pages.

I'll conclude there. Thank you, Mr. Chairman.

8:55 a.m.


The Chair David Tilson

Thank you very much, Professor Dauvergne.

Professor Aiken.

8:55 a.m.

Professor Sharryn Aiken Associate Professor, Faculty of Law, Queen's University, As an Individual

Thank you.

Good morning. I will address the anti-smuggling provisions and designated foreign national regime as well. I intend to focus somewhat specifically on the case of the Sri Lankan Tamil refugee claimants who have arrived in Canada over the last few years.

I want to say at the outset that I endorse and rely upon two briefs primarily—that prepared by Amnesty International, in particular part I of that brief with respect to anti-smuggling provisions, as well as by the Canadian Bar Association, particularly part VI, addressing the designated foreign nationals regime. For those reasons I won't rehearse the provisions in those two briefs but point you to them.

Bill C-31 would impose multiple penalties on claimants as well as protected persons designated as part of an irregular arrival. As you know, the penalties include mandatory detention without access to review for 12 months; the denial of the right to apply for permanent residence status or family reunification until five years have passed since a favourable determination of their protection claim; denial of access to relief based on humanitarian and compassionate grounds, temporary resident permits, or refugee travel documents for five years or longer; and finally, denial of the right to appeal an unfavourable determination of a protection claim to the newly established Refugee Appeal Division.

It is my view that the minister's discretion to designate is overly broad. It's not limited to mass arrivals, and it may be applied retroactively to March 2009. Arrivals of two or more persons “by irregular means” could attract designation.

Let's be very clear: the genesis of these provisions was a response to the arrival of two boats off the coast of British Columbia, the Ocean Lady in the fall of 2009, followed by, almost a year later, the MV Sun Sea. These provisions have been specifically targeted to the case of the Sri Lankan Tamil refugee claimants. If we have any doubt, the proposal to make them retroactive to March 2009 should leave no question lingering.

I will say more in a few minutes about that, but I want to emphasize that in my view these provisions are unconstitutional and violate a number of important provisions in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, as well as the 1951 refugee convention.

These violations are detailed very thoroughly in the CBA and Amnesty briefs, as well as in the May 3 submission of the Canadian Association of Refugee Lawyers, “Canada Must Protect, Not Punish, Refugees”.

I want to urge quite simply, and in the most forceful terms, that we ensure that these provisions are eliminated from the final version of Bill C-31. It is my view that no amendment or incremental improvement around the edges should be acceptable. I want to point out that existing tools within the Immigration and Refugee Protection Act are more than adequate to deal with genuine concerns about mass arrivals.

Let's look at how the system responded to the two boats off B.C.

Refugee claimants were detained until authorities were satisfied that they knew who they were and/or that they didn't pose any security risk. Those for whom there were still concerns remained in detention until those concerns were addressed. It's true that detention reviews are supposed to take place within the first 48 hours. It's merely a review; it doesn't mean that somebody gets released after 48 hours. Indeed, as I mentioned, many refugee claimants were subject to prolonged detention while authorities addressed concerns about who these people were and whether or not any of them posed a genuine risk.

For people on those boats with respect to whom there were security concerns, the government had ample tools in its legislative tool box to designate them a risk and use admissibility procedures before the Immigration and Refugee Board to bar access to the asylum procedure altogether. Indeed, a number of people, particularly those arriving on the Sun Sea, faced those very procedures.

What I want to emphasize is that concerns about irregular arrivals are legitimate. It does pose an enormous burden on a government to process a large group of people who all arrive together—when it's some 500 people, for example—but we have the tools to deal with it, and they work, quite frankly. I see no reason to impose what in my view would be an egregiously draconian set of provisions on people, many of whom may end up being genuine refugees. I want to say that at the outset.

I want to go back to the situation of the Sri Lankan Tamils because there seems to have been much misunderstanding with respect to the causes and conditions that led these people to assume risky voyages in the first place and to brave several months on the high seas to come to Canada.

Sri Lanka, as you may know, is a country that has been wracked by ethnic conflicts that spiralled into civil war, the roots of which can be traced to the period immediately following the country's independence. For 30 years, this civil war was brutal. Atrocities were committed by all parties to the conflict, but we need to keep squarely in view the fact that the primary driver of that conflict was the Sri Lankan state's failure to recognize minority rights within that country: its failure to grant its Tamil citizens, some 18% to 20% of its population, equal rights.

With intermittent ceasefires when conditions appeared to ameliorate, things improved. However, overall, there were significant rates of disappearances, extremely high rates of torture and detention, and a complete lack of accountability throughout the course of that civil war.

The war finally ended with the defeat of the LTTE in May 2009, but as the International Crisis Group has noted in a series of reports over the past three years, including two very recent briefs in March, we see neither peace nor even modest steps toward genuine reconciliation in that country. Indeed, there is deepening militarization in the north and a policy of Sinhalization, a policy that explicitly privileges the majority ethnic group and continues to systemically disadvantage Tamils and Muslims, the two minority groups in Sri Lanka.

Now, recent media reports have suggested that acceptance rates for Sri Lankan Tamils have plummeted. I'm making reference to a recent report in the National Post, but in reality, Sri Lankan Tamils were accepted at the rate of some 57% in the last year. Of all claims made by Sri Lankan Tamils, 57% were accepted. That's a very significant number. Yes, it's down from the high of some 91% of positive claims in 2009, but it is still a very significant number.

I put a call out to refugee lawyers across the country when I realized I would have the opportunity to appear before you today, and I asked them to send me the positive decisions they've received with respect to clients they've represented from the Ocean Lady or the Sun Sea. I had an opportunity to review four such decisions very recently, four positive decisions, three from the Sun Sea and one from the Ocean Lady, and I want to share with you some of the observations made by the board members in those cases.

They include observations such as this one: that the Sri Lankan government continues to screen and check former Tamil Tiger members and those it has suspected in the past of being a Tiger member or supporter. This is seen as a pre-emptive strategy to discourage Tamil radicalization.

Suspected Tiger members and rehabilitated Tiger members are regularly subjected to rearrest or harassment or are forced to act as informants for the military. The new detainees are often not formally charged. Many are tortured.

Under the Prevention of Terrorism Act, government officials who may commit wrongful acts such as torture are provided with immunity from prosecution. Legal proceedings against government officials are prohibited if an individual acted in good faith.

The long and the short of it is that human rights violations persist in Sri Lanka to an enormous extent.

Do Sri Lankan Tamils have a choice in terms of what to do? Those who are able to get on a plane and fly to Thailand, Malaysia, or Indonesia, or to take a voyage to India, find themselves languishing for years. In Thailand in particular, I want to emphasize, there are still at least 60 people in detention in deplorable conditions, without adequate hygiene or nutrition.

They are told to join the queue, yet there is no queue. These countries are not signatories to the UN refugee convention, and at best they wait for years.

9:05 a.m.


The Chair David Tilson

Thank you very much.

Ms. James has some questions.

May 7th, 2012 / 9:05 a.m.


Roxanne James Scarborough Centre, ON

Thank you, Mr. Chair.

Good morning, and welcome to both of our guests.

I'll direct my first set of questions to Professor Dauvergne.

Based on your experience and expertise, in your opinion, would someone who truly feared persecution in their country and who came to Canada as a refugee claimant voluntarily abandon or withdraw their claim and return to their country of origin?

9:05 a.m.

Prof. Catherine Dauvergne

There are a number of things that contribute to people abandoning claims. We quite often hear from refugee lawyers in Canada that claims are sometimes abandoned because people receive very poor advice from unscrupulous community members or consultants. There are conditions under which people who genuinely fear persecution will return to their home country. Sometimes there's a threat to children, but those are rare cases. Often people whose children or families are threatened will make difficult decisions to return while waiting out a process that at present simply takes too long.

9:10 a.m.


Roxanne James Scarborough Centre, ON

One of the examples you gave was receiving poor advice. I'm not so sure that if I received poor advice in Canada I'd flee back to my country to face persecution, but I'll accept your answer.

You've given a couple of reasons why people voluntarily withdraw or abandon their claims. But we're seeing it in droves, where 95% of people coming from the European Union, for example, either abandon or withdraw their claims, don't show up for the first hearing, or their claims are actually rejected.

If they're returning and voluntarily pulling out their claims, is that not an admission that they're not really in fear of persecution in their own countries? I can't imagine, if I were in a situation where I had to flee my country, that I would ever want to go back.

Do you not think that's an admission that they're possibly not being persecuted, as they originally claimed?

9:10 a.m.

Prof. Catherine Dauvergne

Our abandonment rates are not as high as 95%. Among citizens of the European Union who actually get before a tribunal, acceptance rates have been running around 20%. That is lower than other groups, but not insignificant. Without actual evidence about why people are making decisions, we cannot draw a conclusion one way or another.

9:10 a.m.


Roxanne James Scarborough Centre, ON

When I said 95%, I meant they either abandoned or withdrew their claims, or they were rejected, meaning they didn't pass as legitimate refugees. I'm not necessarily saying that 95% are just walking away from their claims. But you do recognize that there is an issue.

There is a potential problem with our immigration system if these people can come to Canada, collect our benefits, and then voluntarily leave without even going to their first hearing. You do recognize that is a serious problem that's costing taxpayers millions of dollars every year.

9:10 a.m.

Prof. Catherine Dauvergne

It's absolutely true that we need to have a system that makes good and fair decisions promptly. This will address any number of issues, including cost.

9:10 a.m.


Roxanne James Scarborough Centre, ON

We've had a number of witnesses before you. This is our second week of witnesses and testimony.

9:10 a.m.

Prof. Catherine Dauvergne

Undoubtedly you're working very hard.

9:10 a.m.


Roxanne James Scarborough Centre, ON

We heard that within the European Union there are 27 countries, so someone from one particular country could choose to go to another country that's very close by if they were fleeing for their life or in fear of persecution.

Why would someone come all the way to Canada and submit a claim as a refugee fearing for their life, as opposed to going to another country where they would have protection immediately?

9:10 a.m.

Prof. Catherine Dauvergne

If you're a citizen of a European country, you're allowed to cross the border and enter another country, but there's no provision to get protection in that country. The European accord on the common asylum system prohibits the extension of refugee protection to EU national citizens. Somebody who is, for example, of Roma ethnicity and is fleeing persecution will find they not only can't get protection in a neighbouring European state, but they also cannot remain there. That is because capacity to remain is contingent on finding a place within the labour market.

For the group of people who are severely discriminated against, one form this discrimination often takes is labour market discrimination. They cannot get the one thing that will give them the right to remain within that country. Although it is a small number and a small percentage, and although much of Europe is a quite reasonably safe place for most individuals, in cases of severe discrimination the right to remain simply cannot be extended.