Citizenship and Immigration Committee on May 7th, 2012

[The Chair, Conservative, David Tilson]

We will reconvene for the final panel of today.

We have witnesses now from the Office of the United Nations High Commissioner for Refugees. We have two participants from that organization, Mr. Furio De Angelis, who is a representative in Canada, and Michael Casasola, who is a resettlement officer.

Good afternoon to both of you.

Mr. De Angelis, you will have up to 10 minutes to make a presentation, and then there will be questions from the committee. Thank you for coming, sir.

[Furio De Angelis, Representative in Canada, Office of the United Nations High Commissioner for Refugees]

Thank you, Mr. Chair.

Mr. Chair, honourable members of the committee, ladies and gentlemen, the Office of the United Nations High Commissioner for Refugees, or UNHCR, welcomes the opportunity to comment before the committee on Bill C-31, the Protecting Canada's Immigration System Act.

UNHCR offers these comments on federal legislation further to the mandate entrusted to it by the United Nations General Assembly, in other words, to direct and coordinate international efforts to protect refugees around the world and to seek solutions to their problems.

UNHCR recognizes the strength of Canada's commitment to protecting refugees around the world, as well as the challenges that the country must address. Canada must ensure the sustainability of its system and maintain its high standards in protecting displaced individuals seeking asylum, while finding durable solutions within its borders.

The UNHCR written submission, a copy of which has been provided to this committee, provides our full comments and recommendations regarding Bill C-31.

My comments today will focus on selected provisions of the bill that will have the most significant impact on Canada's asylum procedures. These comments fall within two general themes: provisions that provide for the differential categorization of asylum seekers and provisions that have the effect of restricting access to the asylum process.

Regarding the designation of foreign nationals as irregular arrivals, UNHCR understands and shares the Government of Canada's concern about the need to combat people smugglers. Yet asylum seekers are often compelled to resort to smugglers to reach safety. The proposed designation of irregular arrivals may lead to an unwarranted penalization of those in need of international protection and, in effect, punish the victims of the smugglers or traffickers for having sought to escape persecution.

With regard to the grounds for designating someone as an irregular arrival, Bill C-31 will create two classes of asylum seekers and refugees in Canada based on the designation provision. Of particular concern is the designation for operational reasons.

Consequences of the designation that are of concern to UNHCR include mandatory detention without review for 12 months, no appeal rights, restriction on the issuance of convention travel documents—which may be at variance with article 28 of the 1951 convention—reporting requirements despite the granting of convention refugee status, and the five-year bar on regularizing status and its implications for family unity.

UNHCR recalls that the principle of family unity is enshrined in international law. The UNHCR executive committee, of which Canada is a founding member, has underlined on several occasions the need for the unity of the refugee's family to be protected. From a non-discrimination point of view, UNHCR does not believe that the grounds for designation as irregular arrivals provide a legitimate justification for a substantially differentiated treatment. The legislation may be at variance with human rights-based non-discrimination guarantees contained in international human rights instruments.

UNHCR's long-standing position has been that the detention of an asylum seeker is inherently undesirable. The situation of asylum seekers differs fundamentally from that of ordinary immigrants in that asylum seekers may not be in a position to comply with the legal formalities for entry, not least because of the urgency of their flight or their inability to approach authorities. Article 31 of the 1951 convention takes this situation into account and prohibits penalties being imposed on refugees on account of their illegal entry or presence.

The United Nations Human Rights Committee has noted that for detention to be lawful, it must pursue a legitimate governmental objective that it is determined to be necessary, reasonable in all circumstances, and proportionate in each individual case, and that detention can only be justified where other less invasive and coercive measures have been considered, and that mandatory and non-reviewable detention is unlawful as a matter of international law.

In UNHCR's view, the relevant provision of Bill C-31 as currently drafted would be at variance with several international standards. For these reasons, UNHCR strongly recommends that the government refrain from introducing a mandatory detention regime for irregular arrivals in relation to refugees and asylum seekers, and that alternatives to detention be explored.

Regarding designated country of origin, UNHCR does not oppose the introduction of a designated or safe country of origin list as long as this is used as a procedural tool to prioritize or accelerate the examination of applications in carefully circumscribed situations.

The designation of a country as a safe country of origin cannot establish an absolute guarantee of safety for nationals of that country. It may be that despite general conditions of safety in the country of origin, for some individuals the country remains unsafe.

It is important than an assessment of countries of origin as safe is based on reliable, objective, and up-to-date information from a range of sources. One way of achieving transparency and quality decision-making could be by ensuring that the designation is done by a panel of experts.

I now wish to turn to measures that UNHCR fears may restrict access to the asylum process.

Regarding the restriction of access on asylum on criminality grounds, in UNHCR's view asylum applications should not be considered inadmissible unless the individual concerned has already found effective protection or access to an asylum procedure in another country.

UNHCR has already expressed its views in the past over exclusion elements being examined under the heading of ineligibility or inadmissibility to the refugee proceedings. Our submission to this very committee on March 5, 2001, which set out the office comments on the Immigration and Refugee Protection Act, remain valid. UNHCR is of the opinion that exclusion from refugee status on criminality grounds should be considered in accordance with article 1F of the 1951 convention, within the assessment to determine the merits of the claim, rather than at the admissibility or eligibility stage.

Regarding shortened time limits under the new asylum process, UNHCR supports efforts by government authorities to decide applications in a timely manner. However, states need to balance efficiency with the fairness of the procedure. Overly restrictive timeframes in the context of a sophisticated asylum process can lead to increased rates of abandonment and the rise of a number of unrepresented claimants. Asylum claimants do not ordinarily have the knowledge to navigate the legal system. Even where a client retains counsel, enough time needs to be allowed for applicants to apply for legal aid and to find a counsel. The consequence of abandonment are, in effect, a final, negative decision, as there is no right to an appeal or access to a pre-removal risk assessment for one year after the negative decision. In this respect, appropriate resources should be allocated towards creating, maintaining, and supplementing legal services for asylum seekers.

Regarding the refugee appeal division, UNHCR welcomes the implementation of the RAD; however, it would recommend that an appeal be available to all claimants. The right to appeal is a fundamental requirement of a fair and efficient asylum procedure, to which no exception should be made. At the core of the 1951 convention principle lies the principle of non-refoulement, whereby those with protection needs cannot be returned to a place where they will be at risk of persecution. The purpose of a second review through an appeal mechanism is to ensure that errors of fact or law, at the first instance, can be corrected to avoid injustice and to ensure respect for the principle of non-refoulement.

Regarding restricted access to the pre-risk removal assessment and to humanitarian and compassionate applications, pre-removal risk assessments and humanitarian and compassionate applications are important safeguards against the deportation of persons who are not recognized as refugees according to the law, but who are still in need of international protection. In particular, given that many categories of asylum seeker will not have access to an appeal under the RAD, the availability of such mechanisms are all the more important to maintain as a procedural safeguard.

Regarding the reopening of a refugee claim, UNHCR maintains that claims for protection should be reopened when new evidence comes to light, including situations where there has been a breach of natural justice, to allow for the claim to be re-examined in its entirety, and recommends that the jurisdiction of the RPD and the RAD to reopen claims be affirmed.

Regarding the cessation of refugee status, the proposed amendments in the bill to bar the appeal against a negative decision on cessation of refugee status, leading to subsequent possible revocation of permanent resident status, will result in a state of uncertainty for many refugees, including resettled refugees, and thus will undermine the durable nature of the resettlement solution. UNHCR recommends the decision on cessation should be subject to appeals and should not automatically bar access to or revoke permanent resident status.

Finally, regarding the disclosure of information, in the context of refugees and asylum seekers, UNHCR recommends that appropriate safeguards be introduced in the text of Bill C-31 to avoid the transmission of biometric and other information, either directly or through a third party, to countries of alleged persecution.

Chairman Tilson, honourable committee members, ladies and gentlemen, I thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. De Angelis.

Mr. Dykstra has the floor.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, Mr. Chair.

I'm going to take a couple of rounds here so that everybody can get settled in, I think.

With regard to one point you made in terms of alternate methods to deal with the issue of detention, would you have a suggestion as to how to do that? Our concern obviously is that a number of the individuals who, for example, were on the Sun Sea or the Ocean Lady, had issues with respect to criminality or issues with respect to war crimes.

The concern we have, obviously, is that the alternative to detention shouldn't mean that an individual or individuals have easy access to the streets of our country without ensuring the safety of the residents and the citizens of Canada.

[Furio De Angelis]

According to international standards, detention in the asylum process is permissible. This is regulated by ExCom 44 of the executive committee. As you know, the executive committee is the governing body of UNHCR, which approves the budget of the organization, and also issues conclusions that are guidance, direction, on international protection to UNHCR. The executive committee...which, of course, Canada is a founding member.

There are situations for which detention is permissible for a period of time under certain circumstances, for situations that may need to be investigated with respect to identity, with respect to a situation where applicants, for instance, destroy their documentation, their identity documents.

So this is a system that is there to guarantee that a situation like the one you are referring to, in terms of criminality, may be assessed and analyzed. The alternative to detention is a mechanism that would also allow people who do not belong to the category of a possible threat, or the possible need to be investigated, to be allowed to be released in a situation as an alternative to closed detention.

This is something—

[Rick Dykstra, Conservative, St. Catharines, ON]

I'm sorry; I appreciate that, but we only have seven minutes per round.

I'll try to be succinct. If you could do the same, that would be awesome.

[Furio De Angelis]

Absolutely.

[Rick Dykstra, Conservative, St. Catharines, ON]

I want to get in as many questions as I can, and I want you to answer as many as you can.

There are several western industrialized countries, though, that actually detain some or most asylum claimants, correct?

[Furio De Angelis]

Yes.

[Rick Dykstra, Conservative, St. Catharines, ON]

I understand in the U.K., for example, they can detain a claimant at any point throughout the determination process and that some of the streams of refugee claimants are actually detained through the determination process.

If that is the case, in your opinion, based on what you said, is the U.K. in contravention of the UN convention on refugees?

[Furio De Angelis]

Well, surely UNHCR would not support, let's say, a rush to a lowest common denominator. We are saying that there are international standards and we'll try to encourage and urge all governments to apply those standards, which have been set by the international community and by the executive committee itself.

I would say that it has to be taken into consideration country by country. In this situation, I would encourage Canada to definitely maintain standards that have been set in international law.

[Rick Dykstra, Conservative, St. Catharines, ON]

I would suggest that we are.

When I look at France, for example, refugees can be detained at any point throughout the asylum process. I don't think you would argue that France is in contravention of the UN declaration.

[Furio De Angelis]

I don't think I'm going to go into the analysis of countries, because this would really go beyond my capacity at this moment.

I would like to repeat that the standards are there, and UNHCR puts the same emphasis for every country in which we advocate the compliance with international standards. Whatever analysis and whatever advocacy we can do here in Canada, we'll surely do it in any other country of the world.

[Rick Dykstra, Conservative, St. Catharines, ON]

I certainly appreciate that. I'm just stating examples of where our detention legislation in Bill C-31 is actually not as aggressive as it may be in some other countries.

I think you would understand that as we were developing the policy, we did look to what other countries were doing that were not accused of being in contravention of the UN convention on refugees.

I have another example. I just returned from the Netherlands, and in my meetings with officials, I was surprised to learn about one of the aspects of detention they use when individuals destroy their documentation after they arrive at the airport. When individuals walk up to the visa officers, immigration officers, and indicate that they arrived in the Netherlands with absolutely no identification, those individuals are then held and detained at the airport until their information...or at least until information is available to determine who these individuals are.

At the airport, if they are determined, there and then, not to have an issue with respect to asylum, it is the airline that is actually responsible for flying these individuals back to their country of origin.

I'd like to get your thoughts on that. I certainly entertain the recommendation that you made that there are alternatives. I'd also point out that there are other countries that are far more aggressive than Canada in terms of detention, number one.

The second is that we're in a position of not being as aggressive as a number of other countries that we partner with in a lot of other areas. So I would submit that you would have to take a look at that when you're viewing this, because that's exactly what we did, and you're viewing other countries in terms of their detention law versus the one that we're bringing forward here.

[Furio De Angelis]

I can also add something in that respect, because Canada already has good experience with alternatives to detention. You know that with the Toronto bail program there is a very high rate of compliance, more than 90% compliance, so this is considered a well-run program, cost-effective, and reasonable.

On the other side, we are also seeing a certain move, especially in Australia. There is a report of March 2012 by the joint select committee, a parliamentary committee on a review of Australian immigration detention. We are actually seeing that, in Australia, there is a move toward community detention and residential housing, especially for children and families.

In a sense you are right, the responses from countries vary and they can be different from one another, but we also have certain examples, especially Australia, which is, as we all know, a country that has explored detention so much and certainly moved to alternatives.

Thank you, sir.

[The Chair, Conservative, David Tilson]

Madame Groguhé.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

Before I get to my questions, I would just point out that we heard from European Union officials this morning. They told us how important it was to respect our international obligations towards refugees and asylum seekers under the 1951 Geneva convention. They also told us that the European Union could opt for sanctions against certain countries that chose not to respect such conventions.

My question has to do with the list of designated countries. The minister said that UNHCR did not object to creating a list of designated countries of origin as part of a balanced reform of the refugee system. Could you please tell us whether UNHCR agrees with the approach to designated countries of origin as set out in Bill C-31?

[Furio De Angelis]

I will answer in English, if I may.

It's very clear that UNHCR does not oppose a list of designated countries of origin. However, it must be understood that the DCO list is a procedural tool. It's not a process, only a procedural tool. We are putting too much emphasis and focus on this. It is a procedural tool that may help in certain situations to facilitate the processing of asylum claims.

What is really important is the process. In order to make a solid process in refugee status determination, there is a need for certain things to happen. Once the process is solid, a designated country list is a tool. It's a tool that may be helpful if used in a certain manner.

The process that makes for a strong and robust asylum determination system includes adequate time for submitting an application—there has to be enough time to find counsel and collect the information necessary. There has to be a first-level hearing that is solid and robust by an independent tribunal like the IRB. Of course, IRB members must be well-trained decision-makers. There must be enough resources put into research on countries of origin, because refugee status determination is a difficult art and requires continued training.

You also need a review phase, a capacity for reviewing errors, in fact and in law. It's very important to catch errors, which may lead to bad decisions and therefore refoulement.

Finally, at the end of the process, there must be a quick removal. The quick removal part of the process is the real disincentive. We are talking very much within the context of Bill C-31. If you have a solid process and a quick removal at the end of that process, you will create a disincentive, which hopefully will take care of the people who want to abuse the system.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

These same people from the European Union told us they did not assume that a refugee's claim was unfounded. They do not assume that a refugee claim is unfounded beforehand. But in the course of our committee discussions, there has been a lot of talk about bogus refugees. Could you tell us where UNHCR stands on that term and its meaning?

[Furio De Angelis]

Faux réfugiés you would translate as “bogus refugees”, in English?

That is a terminology that actually, I have to say, does not exist. It's a contradiction in terms. If you are a refugee, it means you are recognized as a refugee at the end of a process for which, by definition, you are genuine.

If you are not a refugee, you are still an asylum seeker. Asylum seekers are those who seek asylum. They may become refugees, they may become failed asylum seekers. But not all failed asylum seekers are fraudulent by nature. Some may become failed asylum seekers in good faith, genuinely. Let me give you an example.

Take a person who flees from domestic violence—possibly a woman, but not necessarily—and wants to get as far as possible from the abusive family. She arrives in Canada under bad counselling from friends and fails the asylum application because she has not sought national protection in the country she has fled from. In order to be a refugee, you have to prove that you sought national protection, but it was unavailable to you. This is very important in becoming recognized as a refugee.

That person will fail and she will be a failed asylum seeker, but I would not call her fraudulent. She didn't know. She was badly advised.

So the term “failed asylum seekers” may include fraudulent asylum seekers, I agree; but “failed asylum seekers” may also include those who made their applications in good faith and failed.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

What is UNHCR's response to the cessation of refugee status in Canada, especially as it pertains to refugees who have resettled here?

[Furio De Angelis]

What is very important in terms of solutions is that the solutions are durable, are permanent. In the international protection of refugees, there are three solutions, as you know: the voluntary repatriation to your country of origin, the legal integration in the country of asylum where you arrive, or the resettlement.

Resettlement is very important in Canada, because Canada is a very generous country in that respect. It's not a convention obligation. It's 12,000-plus people, now increased by the government, who are generously given resettlement in this country, but this must be permanent, must be durable. Resettlement has to be durable in nature.

[The Chair, Conservative, David Tilson]

Thank you.

We have to move on to Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I appreciate the presentation and I especially appreciate the detailed presentation that you provided us in written format. It's very well stated.

We do find that Bill C-31 has many, many different flaws in it. I can make reference to the mandatory detention as being something that will no doubt be taken to the Supreme Court. I expect there are a number of clauses that will in fact be successfully challenged at some point in court. I don't believe the government's done its homework in regard to that particular issue.

But there are other issues that really do concern us that I would like to receive some feedback from you on.

One is a United Nations 1951 resolution that dealt with the whole idea of two tiers or a double standard for refugees. It would appear that this legislation is establishing that. For example, if you're deemed as an irregular refugee and you're held in detention, you are not going to be able to sponsor your children. For example, even if you're deemed a refugee and you've been released out of mandatory detention, you still cannot sponsor for at least five years a child or a spouse.

I wonder if you might want to comment on that aspect, given other refugees in fact are able to if they weren't designated or they weren't irregulars. It seems to me it's a clear distinction: two types of refugees.

[Furio De Angelis]

I would say that designation in itself is not a problem, because sometimes designation can help in certain processes. What the problem is here is the effect of designation, of course, and the impact of designation into refugee rights that are acquired. So I would say that what we are trying to present as a possible area of improvement is that the impact of that designation should not infringe on acquired rights.

When someone is recognized as a refugee and has a right to family reunification and has a right to certain rights established in the 1951 convention, those rights should be available at the moment of recognition and should not be available later on because there is nothing in the convention that allows a country to give rights after a certain period of time.