Citizenship and Immigration Committee on May 3rd, 2018

[Jacques Cloutier]

Okay.

In addition to what I said earlier, the complexity around doing this is that while the minister has the authority to declare a customs area, he does not have the authority to expand the customs controlled area indefinitely.

We would also need, if we did that, to be able to offer the full range of services—all customs and immigration services—all along the border. Anybody could cross anywhere they wanted and expect to get the full range of services.

In addition to that, the complexity for us is that you're essentially removing the RCMP from the role they are performing now.

My view is that all of these conditions would likely make this more complicated and more dangerous for asylum seekers.

[Jenny Kwan, NDP, Vancouver East, BC]

Right. For individuals who cross over irregularly, per section 133 of IRPA, at the moment, it is deemed they are not committing an offence. We have established that. From that perspective, isn't it the case that, when individuals come over and you've gone through the screening to declare there are no issues of criminality, those individuals are not committing an offence? Can I just get that confirmed on the public record, please, from the RCMP and also from CBSA?

[D/Commr Gilles Michaud]

Yes. In fact, it's not that they're not committing an offence; it's that we cannot take any actions with respect to these individuals until the asylum claimant process is completed.

[Jenny Kwan, NDP, Vancouver East, BC]

Section 133 of the act specifically states they're not committing an offence under various sections of the Criminal Code. Are you telling me that the IRPA is incorrect?

[D/Commr Gilles Michaud]

No. What I'm saying is that my interpretation of IRPA is that they are committing an offence under the Customs Act. but under section 133 of IRPA, we cannot take any actions with respect to that offence until the full asylum process is completed.

[Jenny Kwan, NDP, Vancouver East, BC]

Upon completion of the asylum process, and if they have a valid claim, then it is deemed they are not committing an offence. Are you saying it's those, then, who are rejected who are committing an offence?

[Jacques Cloutier]

If I may, I would offer this. Under the Customs Act, you have to present to the nearest customs office, and Gilles is right in his characterization of it. For the purpose of an asylum claim, the manner in which you got to Canada is totally irrelevant. In the context of failed refugee claimants, what would apply is the conditional removal order they are issued when they make their claim until the process is resolved.

[The Chair, Liberal, Rob Oliphant]

I'm afraid I have to end there. I was listening to the answers and I gave an extra minute. Sorry to the other committee members. The answers were very helpful, I think, to all committee members.

Mr. Whalen.

[Nick Whalen, Liberal, St. John's East, NL]

Thank you, Mr. Chair. They were very good questions.

Ms. Benzvy Miller, earlier you were trying to explain to us how the expedited process works. I don't mind quotas. I think the employees and the adjudicators at the department need to be appropriately managed. Setting targets is a great way. There are probably a lot of government departments that could do more of that. If you could explain to us how the expedited process works, how that allows for streamlining of applications, I think it would be helpful to the committee.

[Shereen Benzvy Miller]

I think everybody understands intuitively that not all claimants' claims are as complicated as others. There are varying degrees of complexity in the claims we receive, even in the number of claimants that are in associated claims, for example. Also, some people come with multiple nationalities. Some people come having been in different countries, where persecution has happened in countries other than the first country or their country of birth. Depending on the complexity of cases, it does impact the amount of time it takes. Because we do individual assessments of claimants and their stories, it does take a different amount of time, which is why we have longer hearing opportunities or shorter hearing opportunities. By the way, even if we schedule something for a short hearing, if it does go over, then it will be rescheduled for another one. These are triage mechanisms to allow for efficiency. You can imagine if we block three hours of time for a member, but it only takes an hour or an hour and a half to hear the claim, then it's an hour and a half of dead time, where they might have actually scheduled another hearing if we had done two short hearings in their morning. In an effort to be as efficient as possible, we do a triage of what the claims require as attention.

The expedited process is an interesting one because it's a paper review. Currently, we have eight countries that are listed for expedited hearings: Afghanistan, Burundi, Egypt, Eritrea, Iraq, Syria, Turkey, and Yemen. It's a backward-looking assessment really. We look at the caseload, and when we have an over-85% acceptance rate for a country then we allow members to look at those cases as a paper review first. Eritrea is an example. When you look at that country, you see that 85% of the time the persecution is found to be future-looking and it is a case where the person does require asylum or refugee status. Now if the member, in looking at it, thinks the complexity is too great, they will schedule a hearing. Even though it's been on the expedited potential list, they will schedule it for a hearing.

These are just triage mechanisms for us, to allow us to be as efficient as possible.

[Nick Whalen, Liberal, St. John's East, NL]

This expedited list doesn't compromise the effectiveness or the rule of law component, the fairness of the proceedings? It's just a triage tool?

[Shereen Benzvy Miller]

That's a very good way of putting it. Please remember every claim that comes before the board gets the full attention of an independent member who looks at the claim in its full force and applies all aspects of the law to it. These triage mechanisms are enabling mechanisms for them to distinguish between the complexity of various cases.

[Nick Whalen, Liberal, St. John's East, NL]

Thank you very much.

I'm sorry I don't have many questions for the law enforcement officials who have come to us today. We have confidence you're doing excellent work, and that Canadians are safe.

I'm more interested in some of the lines of questioning brought by the opposition members, particularly around the third challenge that was raised by Mr. MacDonald, that at the working level the Americans have been notified that Canada has a concern with. This is around seeking the requirement for an asylum seeker to seek asylum in the first safe country where they arrive.

If that rule was in our agreement, what would be the net impact on an asylum seeker in Canada who came irregularly from the U.S.? Would there be an ability for us then to render them back to the U.S. immediately? Would they still be entitled to an IRB hearing that would count against their asylum claim? How would that concern play out practically in the minds of a Canadian trying to figure out how this affects the regular migration across the border?

[Mike MacDonald]

I think the best way to answer that is to simply state that Canada and the United States, through the treaty, have agreed that it's best if people seek refuge and explain why they need protection in the first available country, as long as that country has a robust asylum system, is a safe place, and so on. We have mechanisms to verify that against each country, and we've done that, to keep the agreement current.

Then you get into the second area of your questions, which is the concept of turning back. Canada would be contravening its obligations on the international scene with conventions against torture and refugee convention by turning someone back who sticks up their hand when they cross the border and says they're in need of protection.

This is a two-part response, but those are the main fundamental areas around this concept of turning back.

[Nick Whalen, Liberal, St. John's East, NL]

What is the practical implication of negotiating a change to the safe third country agreement where there would be some type of a formal requirement that applicants seek asylum in the first country? What would be the impact on someone who didn't?

[Mike MacDonald]

I will answer very quickly, and then you can move to my colleague Mr. Cloutier.

Under the concept of turning someone back under the agreement, there has to be someone on the other side to safely and securely receive the individual. That's a border complexity and a cross by national operational issue, which Mr. Cloutier can answer.

[Jacques Cloutier]

I think what you're asking me is if we were to extend the safe third country agreement so it included in between the ports. Is that the question?

[Nick Whalen, Liberal, St. John's East, NL]

No. It's more if it included the concept as the concern expressed by Mr. MacDonald that a more formal requirement within the agreement that each individual seek asylum in the first country where they arrive, if they irregularly cross between Canada and the United States. I'm not asking you to take control of that. The RCMP would still have jurisdiction. Once they are turned over to you then this would be a factor in considering whether or not you would engage with the Americans.

[Jacques Cloutier]

In answer to your question, I think it's important to understand that the safe third country agreement also has exemptions. You can come to a legitimate port of entry, and under one of several exemptions, make your claim there, and your claim will be heard. When I say will be heard, I should qualify that. A decision will be made on whether or not the claim is eligible. If it is, eventually it will be heard by the board.

In answer to the question how would we turn people back and send them to the States, I think it would fly in the face of all our international obligations, and the values we've put forward. Might is right. If we wanted to implement something like that, it would have to be done operationally hand and glove with our U.S. counterparts, but it would be, on the face of it, a strong departure from an established rule.

[The Chair, Liberal, Rob Oliphant]

Thank you.

[Nick Whalen, Liberal, St. John's East, NL]

Can I have an extra minute?

[The Chair, Liberal, Rob Oliphant]

You've actually had your extra minute. We'll come back to you.

I'm going to give—

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

I'll get an extra—

[The Chair, Liberal, Rob Oliphant]

You'll get an extra almost minute, Ms. Rempel and Mr. Maguire.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Oh, wonderful. Thank you.

For the month of April 2018, how many people entered Canada through a non-official point of entry and claimed asylum? Can you table that with the committee, or do you know?