Citizenship and Immigration Committee on July 24th, 2018

[Mike MacDonald]

They're open work permits, so we wouldn't have an indication of that for several years.

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

Do you have any intent of putting in place a system to monitor the employment status of people entering the country in this cohort?

[The Chair, Liberal, Rob Oliphant]

Mr. MacKinnon, and that will be the final word.

[Paul MacKinnon]

Mr. Chair, we don't have that information now, but on the question of whether or not we have a plan, we are looking at how we can work with provinces to better understand the people who go on social assistance and who do not pick up our work permits, and how we can link that data going forward to understand when people come off social assistance. Therefore, the proxy for that is that we're assuming that they're working.

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

How many are on social assistance?

[The Chair, Liberal, Rob Oliphant]

I need to end it there.

Thank you, Mr. MacKinnon.

Thank you, Ms. Rempel.

Thank you, ministers and officials, for this first hour. I'd like to have a fairly quick change so we can bring in our next panel of witnesses.

We'll suspend for just a moment.

[The Chair, Liberal, Rob Oliphant]

We're going to call the meeting back to order, please.

Thank you, witnesses, for joining us for this second hour as we continue to study the impact of irregular crossings at the southern border of Canada.

We're going to begin with the current representative from the United Nations High Commissioner for Refugees.

Monsieur Beuze, would you begin? You have seven minutes. Thank you.

[Jean-Nicolas Beuze, Representative in Canada, Office of the United Nations High Commissioner for Refugees]

Thank you very much, Mr. Chair and honourable members. Thank you for inviting us to come before this committee once again.

Let me put things in the perspective of the UN refugee agency, which has a global mandate. Last year we saw 25 million refugees. It's an increase, compared to 2016, of close to three million refugees. It's the largest increase that we have witnessed globally in a year's time. On top of that we have 4.4 million asylum seekers whose cases are still pending.

It will come as no surprise to the honourable members that if we have an increase of three million people recognized as refugees, Canada will have a fair number of those people coming to the territory. If you look at the number, the 50,000 asylum seekers, let's say that if the IRB were to recognize all of them—and it's the prerogative of the IRB to decide who is a refugee or not—of the 29.4 million, those 50,000 mean that less than 0.2% have come to Canada. I think it's important to put this in perspective.

The second point is that if we look at the countries, indeed we have a number of people coming from situations of extreme violence, such as those in Somalia, Syria, Yemen, and Palestine. I'm sure that all Canadians are very proud to be offering protection to those families. In addition, we have countries like Nigeria and Haiti, the two main countries from which irregular arrivals are arriving. We know that in those countries a number of profiles, such as the LGBTQ community, victims of sexual violence or domestic violence, or little girls at risk of female genital mutilation or cutting or of child marriage, may be in need of Canada's protection. Again, I'm sure that everybody in this room is proud that Canada offers this protection to those families.

A lot of discussion has been going on about the numbers and predictions of numbers for the remainder of the year or for five years' time. UNHCR will caution against those kinds of approaches. It's extremely difficult to predict, as was said earlier on. We have seen a large decrease, in May and June, of people arriving in Canada through irregular crossings. If I am correct, as we stand now in July we have an average of 40 to 45 persons crossing irregularly at Roxham Road, which is half of what was happening in July last year. I think nobody could have predicted that. We had heard, on the contrary, people crying wolf, indicating that we would be seeing a large increase. That's not what is happening, and therefore it's very difficult to predict those movements.

I would like to make a point about the fact that it has often been described as people coming from the U.S., United States long-timers, who are coming to Canada. Actually, for the last 18 months we have observed that a number of people actually use the United States only as transit. They claim or they report that it was easier for them to get an American visa than a Canadian visa but that their intention was to come to Canada.

Here I need to stop and say that there's no obligation, under international law, for people to claim asylum in the first country where they arrive and where they can find safety. However, UNHCR encourages countries to come together and have agreements to manage their borders as efficiently as possible. In this respect, I have had the opportunity to brief this committee in the past. UNHCR has been observing the situation at Lacolle, at Roxham Road, but also in Manitoba and in British Columbia, where people are arriving through irregular means. I must say that we have seen not only an efficient processing of those persons by RCMP, CBSA, and later on IRCC and IRB, but one with a lot of humanity and respect for the dignity of those people. I'd say again that Canadians must be proud of what has been achieved by all those institutions over the last 18 months.

I would like to turn to the issue of language. I think it's very important that we keep using the correct terminology, because a number of words that have been used in this room and elsewhere tend to dehumanize the people who arrive by irregular means.

As was mentioned several times, people cannot be qualified as illegals. They are irregular arrivals. They enter irregularly, but there is nothing illegal when you cross an international border to claim asylum. IRPA is very clear on the fact that it is applicable also to people who transit through another country.

It is also important to maintain the fact that the Immigration and Refugee Board is the only competent body. It is an independent quasi tribunal that will decide whether people are entitled to the protection of Canada as refugees or not, and therefore it is dangerous to qualify those people as making an eventual bogus claim. Those people all come with different stories and choose Canada for different reasons, including sometimes a family connection or cultural and linguistic affinities. All of those reasons are difficult to ascertain because every single case is different. One needs to repeat here that it is never an easy choice for people to leave their home and cross several seas, continents, and countries to claim asylum in another country.

I would really like to stress that we hope that the populist rhetoric that seeks to gain short-term voting support will not bias the discourse and the discussions that we have about people who are irregular arrivals and are entitled to the protection of Canada, pending determination of their cases by the Immigration and Refugee Board.

The last point I would like to make is that we know that a number of them are rapidly becoming economically self-reliant. We know that it takes an average of three weeks for people to get a work permit. We know from anecdotal evidence that in Quebec, for example, 50% of them have a job and therefore are not using the social subsidies of the state. They earn their bread and butter for themselves and their families on their own. We know that a number of them are educated and will find a job. We also know that the capacity of shelters to accommodate them was not overwhelmed by the arrival of those numbers. This predates the crisis, and it is extremely important that we not scapegoat refugees and asylum seekers for issues that predate and are related to other factors than their arrival in the country.

Thank you very much, Mr. Chair.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Mr. Edelmann, you have seven minutes.

[Peter Edelmann, Lawyer, As an Individual]

Thank you for inviting me to appear once again before the committee.

I am a lawyer who specializes in the arena where criminal law, national security, immigration, and refugee status intersect. For more than a decade, I have routinely handled legal issues involving the arrival of refugees in Canada as regards both migratory law and criminal prosecution.

I am glad to have the opportunity to speak at greater length about the issues deemed most important by the committee. I thought it helpful, however, to take some time during my opening remarks to briefly outline the legal context for refugee claims in Canada and the legality of the actions taken by refugee claimants.

When discussing the legality of refugee claims, it is important to understand the process of initiating a refugee claim. Regardless of where a person makes a refugee claim, be it at a land-based port of entry, an airport, an inland office, or a marine port, the claimant will invariably be issued a conditional departure order. It is important to understand the grounds on which that order is made—a breach of the requirement under paragraph 20(1)(a) of IRPA that a foreign national seeking to become a permanent resident have a permanent resident visa.

The conditional departure order is issued to every claimant, regardless of where they make their claim. It comes into effect only if the refugee claim is denied, and it never comes into effect for people who become protected persons.

A person who makes a claim after crossing the border at a place other than a port of entry will be issued a departure order in the same way: in other words, on the same grounds, for the same breach of the act.

Despite the grounds for inadmissibility underlying every refugee claim in Canada, I find it difficult to frame this as illegality, given Canada's obligations to refugees, both internationally and under the charter. Significant portions of IRPA are dedicated to refugee claims, starting with the objectives set out in subsection 3(2) relating to refugees, specifically paragraph 3(2)(c), which sets out the following objective:

to grant, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

The bulk of part 2 of the act addresses the process and procedures for making refugee claims in Canada, and section 99 specifically foresees that a refugee claim may be made inside Canada. I am unable to understand why the use of these procedures, in good faith, could be framed as illegal, even if it invariably results in a finding of inadmissibility and the issuance of a conditional departure order.

The arrival of refugees on Canada's shores will often involve other apparent contraventions of the laws of Canada and other countries. One of the most common contraventions we see is the use of fraudulent or improperly obtained documents in order to travel. Beyond the problem of not having permanent resident visas, many refugees aren't able to obtain legitimate documents to come to Canada at all.

The British House of Lords described this problem in the case of Adimi in the following terms. These are the words of Lord Justice Simon Brown:

The problems facing refugees in their quest for asylum need little emphasis. Prominent amongst them is the difficulty of gaining access to a friendly shore. Escapes from persecution have long been characterised by subterfuge and false papers. As was stated in a 1950 Memorandum from the UN Secretary-General:

“A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge.”

It is precisely in the context of this that the framers of the refugee convention included the principles in article 31, which, as you've heard today, have been implemented into section 133 of the act, which states that a person who has made a refugee claim in Canada may not be charged in relation to a series of events “in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.”

This is the equivalent in criminal law of the conditional departure orders that are issued in the context of immigration law. There are no legal consequences or penalties imposed in Canadian law for irregular arrival against individuals found to be genuine refugees.

This brings me to the question of irregular crossings, which is the topic of your meeting today. I think it is important to clearly outline why the conduct of claimants at places like Roxham Road is being reproached, so there is clarity on the appropriate way to engage in the claim process set out in IRPA.

I would like to emphasize that it is not a contravention of IRPA to cross at a place other than a port of entry. Subsection 27(2) of the regulations clearly states:

Unless these Regulations provide otherwise, a person who seeks to enter Canada at a place other than a port of entry must appear without delay for examination at the port of entry that is nearest to that place.

The crossing itself is not illegal. Where we talk about illegality or where there is a contravention is under the Customs Act. Subsection 11(1) of the Customs Act does create a requirement to enter only at a designated customs office. Although section 160 of the Customs Act creates a general offence for the contravention of section 11, it is very doubtful that prosecution against a refugee claimant would or could be pursued without being in breach of both the charter and Canada's international obligations.

It would also be a rather odd state of affairs if we were to refer to refugee claims made in conformity with the process set out in IRPA as illegal only because of a breach of customs regulations. IRPA is designed to regulate the entry of people, while the Customs Act deals with goods. Refugee claimants entering at places other than a port of entry are doing so in order to make a refugee claim, rarely if ever with any intention to undermine the goals of the Customs Act.

Moreover, if this is the only illegal aspect of the conduct, it can easily be remedied by claimants simply crossing through waterways and lakes and arriving at designated customs points. I don't think anybody at this table wants to see people starting to cross waterways, and I don't think I need to elaborate on the problems that would arise out of that.

I'd like to conclude my remarks by sharing one last observation.

Whether you wish to qualify refugee claimants crossing into Canada at the country's southern border as legal or illegal, the strategies they are using stem from the safe third country agreement.

As Professor Liew will undoubtedly point out, there is good reason not only to question the U.S.'s designation as a safe third country, but also to consider suspending the agreement altogether from a practical standpoint. Rather than creating a situation that encourages irregular crossings, it would certainly be preferable for refugee claimants at Canada's southern border to enter at ports of entry in an open and orderly fashion.

It is highly doubtful that the U.S.'s designation as a safe third country will deter refugee claimants. It is much more likely that the designation will merely deter them from making their claim at a port of entry.

Thank you for listening. I would be happy to answer your questions.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Edelmann.

We will now continue with Ms. Liew.

Thank you. You've given us a written submission. The members will get it once it's translated, but just don't assume they have that submission yet.

[Jamie Liew, Associate Professor and Refugee Lawyer, Faculty of Law, Common Law Section, University of Ottawa, As an Individual]

Good morning, and thank you. I am a refugee lawyer and an associate professor of law at the University of Ottawa.

I first want to talk about the idea that assessing refugee claims should be done within the framework of a process related to the selection of humanitarian immigrants. When we are talking about processing refugee claims, there are three things the committee should keep in mind.

First, as you've heard a lot about today, Canada has an international obligation not to return a person to risk, and to properly assess refugee claims.

Second, there are a number of factors driving people to move, including those out of Canada's control. People have been and are coming regardless of what Canada does to discourage or encourage them to come, and the committee should not conflate the refugee protection program with other immigration streams. It is a unique program where people are not necessarily selected, and where the requirements to qualify as a refugee are different from the criteria in any other stream. Questions about whether those crossing our borders speak our official languages or what skills they have are irrelevant. What is relevant is whether the person fits the definition of refugee.

Third, refugees should not be pitted against each other. There is no queue. Sure, Canada can voluntarily select persons overseas to resettle, but refugees abroad waiting in refugee camps are no more or less deserving than those who eventually obtain protection by coming through our land borders. While, for better budgetary planning, the levels plan can be amended to an estimated number of persons who may be expected to come, ultimately we should not be preoccupied with quotas or levels because, as was said earlier, the levels are unpredictable and, ultimately, we have an international obligation to meet.

This committee has also heard that one plan the government should undertake is to close the loophole in the safe third country agreement. In my recommendation today, to manage the border, as one member of Parliament has said, in a planned, orderly, and compassionate manner, we should suspend the STCA immediately.

I just want to make a point of clarification from this morning and note that article 4.1 of the safe third country agreement actually stipulates that the STCA be applied at the land port of entries, and not between the ports of entry. I wanted to clarify that and make sure the committee knew it.

Secondly, I think if we are talking about applying the STCA between the land ports of entry, not only would there be a practical problem with that, but there is also the issue of making that factual finding. How would we be sure how a person has entered Canada? This is a factual finding that comes with many procedural barriers and one that I think would burden legal processes in the future.

Aside from that, I do want to note that the STCA's original purpose was to reduce the pressures faced by the IRB from the number of claims being made, but that it would not adversely affect the situation of asylum seekers. The STCA primarily benefits Canada, and the U.S. agreed to it in order to put in place post-9/11 measures at its border. Since it's inception, the STCA has not done what it has promised, which is to prevent refugees from coming into Canada. This is clear from the numbers that you've heard today. Both before and after the STCA was put into place, people have been coming across our border.

Second, concerns have been expressed in the House and the Senate since 2002 about the STCA, and indeed the Senate in 2002 in its report on the safe third country regulations highlighted the very risks we see people experiencing today. The Senate then, as well as advocates today, have called for a review of this agreement due to these risks. I've reviewed information coming from the United States on the impact of the STCA and I want to highlight a few factors for you today.

The first is that Canada is putting people at risk by turning them away at official ports of entry. For example, there's a case of one Rwandan woman who went to an official port of entry, was interviewed by Canadian border officials over the course of five hours, was shocked that no one asked her why she was claiming asylum, gave her fingerprints, signed some documents, and was driven back across the U.S. border, where she underwent more interviews, was handcuffed, detained, put into solitary confinement for 10 days, released into the general population in the prison, and when she was eventually released from detention she just came back to Canada through an irregular, and very dangerous, route.

I understand that Mr. Seidhu Mohammed is coming to speak this afternoon, and I think he is the best person to give you more details on the risks of crossing the border this way.

Second, Canada is violating its international obligation to properly assess refugee claims by turning a blind eye to the improper treatment of refugee claimants in the U.S., including the latter's detention of people via an expedited process, and its denial of claims based on gender-based persecution, for example.

American attorneys have given a lot of evidence that the U.S. government is apprehending people travelling by buses and trains and prosecuting them on charges of illegal entry regardless of whether an asylum claim has been made. Persons are given credible fear or reasonable fear interviews, and if they do not pass they are removable. These are cursory interviews where people can be denied on the spot, without an opportunity to obtain a lawyer or to develop and present their claims, and quickly deported thereafter.

American attorneys have also stated that immigration detainees are being held in criminal facilities, subject to solitary confinement. There is insufficient medical care in detention, and little access to interpretation and legal services. A significant number of immigration detainees are not eligible for bond. Children and entire families are being detained. Attorneys have seen their clients experience PTSD and suicidal ideation.

With regard to gender-related refugee claims, we've seen the attorney general of the United States, Jeff Sessions, issue a precedential decision that effectively eliminates a woman's ability to obtain refugee protection based on domestic violence or other forms of gender-related persecution.

This is all too real in the case of Ms. L from Honduras, for example. She was kidnapped as a teenager, held in captivity, and raped and beaten for months. This included attacks with a machete. Thereafter, for more than 10 years, Ms. L was stalked and threatened. Hit men killed her domestic partner. Ms. L had to move to different parts of Honduras. She fled to Mexico but was deported back to Honduras. Ms. L's abuser moved back in with her and continued his brutal abuse until she fled for the United States, where she was detained. Even though an immigration court found Ms. L credible, refugee protection was denied, despite evidence of gender-based violence and the Honduran government not being able to protect her.

I want to close by saying that the government should be interested in managing the border in an orderly and compassionate way. There are three steps to do this. First, suspend the STCA. Allow people to present themselves in a regular fashion at an official border crossing, not makeshift ones like at Roxham Road. Second, give each person coming to our border a fair opportunity to present their claim at the IRB, because we can no longer be assured that people are getting a chance to do so in the United States. Finally, fund the IRB appropriately to hear their cases in an efficient manner.

I am open to any questions or remarks the committee may have today. I will also be providing a copy of the Canadian Council for Refugees paper on why the U.S. is not safe for refugees.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Mr. Whalen, you have seven minutes.

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

Thank you very much, Mr. Chair.

Thank you to all for coming.

Mr. Beuze, you've appeared before our committee on many occasions. Thank you for the international perspective you've provided.

You spoke a little bit about the reduction from last year to this year and the overall percentages of the number of international refugees Canada seeks to help. As compared with our other western counterparts, do you find that Canada is doing a good job of managing its international obligations and of living up to those international obligations, not just overseas but at our Quebec and Manitoba borders?

[Jean-Nicolas Beuze]

There are two points. Definitely Canada is upholding the standards of the convention by allowing people arriving through irregular means to lodge a claim before the IRB. I must just say that, from over 18 months of observation, I will differ with a point that has been made. The people are not taking a risk. They are crossing at Roxham Road, or 96% of them are crossing at Roxham Road. I know that a number of you have been there. It's a little ditch that has actually been filled with stone. Nobody, even in the winter, is taking any risk whatsoever in terms of their life or their physical integrity. In this respect, the process at Roxham Road is extremely efficient, extremely humane. It's taking care of the various needs of the population that arrives, whether it be children, persons with disabilities, or so on. Canada is certainly upholding the standard.

The second point is that when you look at one indicator—for example, the ratio of asylum seekers compared with the overall population—it's 50,000 out of 37 million Canadians, or 0.1%, which is very similar to what the U.S. and a number of countries, Germany in particular, are witnessing. However, I need to flag this. Take Germany as an example. At some point in the past, in 2015 and 2016, Germany received 700,000, or close to 800,000, asylum seekers in comparison with the 50,000 for Canada. These are two G7 countries. Of course, Germany has double the population, but still, if you make a comparison, Canada is receiving only a small fraction of what European countries, for example, are receiving.

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

From my perspective, one important reason to have this meeting is to combat some of the disinformation around asylum seeking in Canada and to reassure Canadians that we're living up to our international obligations, of course, and that we do have a system that is compassionate, and that Canadians are doing their part.

You've spoken a little bit, and we've heard from Mr. Edelmann as well, and previously we had Minister Goodale speak about the legal obligations that we're meant to uphold. With regard to section 133, can you just clarify a little bit for us what Canada's obligations are and how we're living up to them, Mr. Edelmann?

[Peter Edelmann]

Sorry, is that section 33 of the convention?

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

No, it's article 31 of the convention and section 133 of IRPA.

[Peter Edelmann]

In my experience with the criminal law, we very clearly implement section 133 in terms of not proceeding with prosecutions. Generally speaking, we don't see prosecutions unless there are cases of outright fraud or other situations in which people might be prosecuted. In the sense of people arriving without proper documents, the implementation of section 133 is, in my view, done quite effectively within the courts. From time to time we have to fight or have some arguments about the actual interpretation of it in the courts as to how it applies to the pre-removal risk assessment process or other issues. In terms of the straightforward refugee claimants, I haven't seen any prosecutions, at least in the region where I practise.

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

Certainly in my riding, we receive not, perhaps, as many refugee claimants as larger cities do, but in St. John's East there are many people who come with improper documents. We're always trying to fix the birth dates or allow them to resume normal life once they're settled in Canada. There are many bureaucratic and documentary problems in the countries from which they've fled.

This is maybe a question for you, Ms. Liew. In terms of obligations to let Canadians settle into Canada and become established, do you think that what we're doing at the IRB to ensure that they have a fair hearing, once they get to that stage of the process, needs to be changed in some way, or is the IRB functioning properly in this regard?

[Jamie Liew]

I think the IRB has a pretty high standard in the world with regard to refugee determinations. There is always going to be room for improvement. I think the biggest barrier with regard to what this committee is concerned about today is the fact that the IRB needs more resources to be able to operate in a fast and efficient manner, and to do its job in a way that is not leaving a lot of people's lives in limbo.

It's not just the government that has to be concerned about the costs of having people wait for their refugee hearings to be held. There is also the emotional and the financial costs associated with refugee claimants themselves. I think that one prudent measure the government can take is to properly resource the IRB to match the number of claims that are coming through.

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

Well, on that point, Mr. Beuze, you've been before us many times. You've seen changes over the course of this Parliament and what we've done on the integration front. We've just added $173 million to address this very issue. From your perspective, have the changes we've made over the last three years made our system better? Are we better able to cope with the situation at the border than we were, say, in 2015?

[Jean-Nicolas Beuze]

In terms of the processing at the border and at the irregular arrival points, I repeat the observation of UNHCR that things are processing in a very humane manner and diligently.

I would also like to flag that the IRB, over the last 12 months, has done incredible work in creating efficiencies within the system and within the legal and policy frameworks that have increased efficiency by up to 50% with the same resources—that is, without using the resources that were allocated by the federal budget in February. That, I think, is to be commended, because it's a way to go.

Yes, there is a long time frame, up to two years, but that's not odd. There is not a single refugee status determination body, including UNHCR when we are doing it, that does not have those large backlogs. That's a reality of that kind of work. It's resource-intensive. It requires human interpretation. You need to hear. There may be different evidence to be brought. In the meantime, those people, after three weeks, get a work permit, and a large majority of them become self-reliant and therefore can wait. It's clear that there is emotional duress, but when they have fled torture or bombs falling on their house, waiting even for two years—with a work permit, a house, and their kids in school—for a decision from the IRB, I assure you, is not the main problem of those asylum seekers.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Ms. Rempel.

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

We've heard an assertion that the United States is not safe for refugees, so I'm just wondering if the UN could tell us if you're asking the United States to accept refugees this year.