Mr. Speaker, this question was discussed at length in the Standing Committee on Citizenship and Immigration, and practically all the organizations voiced their opposition to politicizing the refugee status determination process and transferring the IRB's jurisdiction,
and more particularly that of its appeal division, to a politician, a minister.
There was unanimity among the lawyers who appeared before the committee to oppose the transfer of jurisdiction from a quasi-judicial organization to the executive, the political authority. I would like to mention some the organizations who came before the committee: the Canadian council of refugees, the refugees lawyers association, the Canadian bar association, the Immigration and Refugee Board. They were all against this transfer of jurisdiction from the IRB to the minister. I should also mention Amnesty International, the Quebec association of immigration lawyers, the Canadian labour congress, the Canadian ethnocultural council, the national action committee on the status of women, and the interchurch committee for refugees.
We proposed this motion mostly because we are against the cancellation by Bill C-44 of the right to appeal for equity reasons. The right to appeal in immigration matters dates back only to 1952. The Immigration Act of 1952 established a limited judicial appeal system managed by the Immigration Appeal Board.
In 1967, a piece of legislation formally instituted the Immigration Appeal Board as an independent tribunal in charge of hearing appeals filed on grounds involving questions of law or fact or mixed law and fact, by individuals under an expulsion order. In 1973, the right of appeal was restricted to permanent residents, visa holders and individuals claiming refugee status or Canadian citizenship.
Since 1989, refugee status determination is under the jurisdiction of the IRB, an independent quasi-judicial body. The Appeal Division of the IRB replaced the Immigration Appeal Board. We can see that, since 1952, immigration ministers and officials of that department have tended more and more to leave such matters to an increasingly quasi-judicial body.
However, Bill C-44, and particularly clause 4, goes against that legislative trend which started in 1952. A court of appeal must be able to rule on issues of law, fact, or both and equity, and I emphasize equity, towards refugees, visa holders, permanent residents and sponsors.
Clause 13 of Bill C-44 amends section 70 of the Immigration Act and deprives the appeal division of the IRB of the power to stay, for reasons of fairness, the execution of a deportation order, or to quash that decision in the case of crimes punishable by a term of imprisonment of ten years or more.
I take this opportunity to tell the minister why we wanted to exclude permanent residents who have lived in Canada for at least ten years. It is because such a provision also exists in Australia and in France. Therefore, we would not be the first country to do so.
The deportation decisions made by immigration officers, as opposed to an independent tribunal, may be technically flawed. For example, they may be flawed because of procedural technicalities, insufficient evidence, inconsistency or lack of accountability. Right now, the Appeal Division of the IRB is an appropriate and fair tool to dispose of an appeal on a deportation order, or to deny a sponsorship application.
I share the views expressed on page five of the excellent submission presented to the Standing Committee on Citizenship and Immigration by the National Immigration Law Section of the Canadian Bar Association, where it says: "The appeal division looks at errors in law and at all the circumstances of a case to determine if there exist reasons based on fairness. A mere examination to look for any error in law is not sufficient. The appellant and the minister are both represented. Oral as well as documentary evidence is presented before a public forum and is subject to cross-examination. The decision is then made by an independent tribunal and subject to judicial control. With the changes proposed in Bill C-44, it is the minister or an immigration officer who will make a discretionary and subjective examination. It will not be possible to review any factual error".
I would prefer to have the decision to send a person back to his or her country of origin, thus putting his or her life in danger, made by a tribunal after due process: presentation of evidence, cross-examination and oral arguments. Very often, we are confronted with complex questions of fact or law. Immigration officers responsible for the application of the legislation often do not have the resources, the training or the mandate to determine whether or not the expulsion of a permanent resident is justified.
Further on, the national section on immigration law of the Canadian Bar Association says: "One of the main advantages of an independent tribunal is that it guarantees that difficult decisions in expulsion matters are not made by politicians. What the minister is proposing in his statement is a unit, responsible to his office, which would review expulsion measures. Political decisions are unpredictable, inconsistent and dangerous. For all interested parties, access to the minister or his representative can become a major and unfair factor".
For these reasons, I support Motions Nos. 15, 16 and 17.