Proceedings of the Standing Senate Committee on
Human Rights
Issue 4 - Evidence, April 28, 2008
OTTAWA, Monday, April 28, 2008
The Standing Senate Committee on Human Rights, to which was referred Bill C-280, An Act to amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), met this day at 5:06 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: The Standing Senate Committee on Human Rights is here today to analyze and deal with Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171).
The sponsor of the bill in the Senate, the Honourable Senator Goldstein, is here with us to make his presentation. Ms. Demers, Member of Parliament for Laval, who I believe was a sponsor in the House of Commons, is also here. I understand both of you will make opening comments and we will ask questions after.
Welcome to both of you. We are pleased that you are here.
Hon. Yoine Goldstein, Senator, sponsor of the bill: Thank you for permitting me to be here.
I want to pay homage to Ms. Demers, the sponsor of the bill in the place below, or as we call it, the other place. I prefer the place below. She is sponsoring the bill as a function of the extraordinary humanness with which she is so generously endowed. She is a very good person.
Let me start by suggesting what Bill C-280 is likely to do. You may remember from the debates in our chamber that this bill is intended to bring into force the provisions of the Immigration and Refugee Protection Act that would establish a refugee appeal tribunal. It would bring into force sections 110, 111 and 171 of the act.
Parliament passed the bill creating the Immigration and Refugee Review Board of Canada and envisaged the creation of a refugee appeal board in 2001. However, the refugee appeal board has yet to be implemented. As we will see in a few minutes, the existence of that board was central to the logic of the changes being made to Canada's system for processing immigrants and refugees.
It is unfortunate that Parliament should be forced to create a new law in order to fully implement the provisions of a law it has already passed. It is doubly regrettable in this case. The refusal of successive governments to implement the refugee appeal board is only one symptom of the growing crisis in Canada's system for the protection of refugees and asylum seekers.
I want to emphasize that this is not a partisan issue. Previous governments of a different stripe did not implement the board. This government has not implemented the board. All of the various ministers who were involved with immigration, right up to Minister Solberg have indicated their reasons why, whatever their reasons may be. I want to emphasize this is not a partisan issue but a human rights issue, and that is why we are here today.
We all know that every day around the world there are thousands, maybe hundreds of thousands of people who flee from their homes to escape persecution based on race, religion, political views and a host of other factors. Over 55 years ago, recognizing the horrors of being a refugee, the international community codified its responsibility to protect these people in the form of the United Nations Convention Relating to the Status of Refugees.
As a party to this convention, Canada is forbidden to send any refugee claimant to another country where his or her life or safety would be threatened. It is Canada's duty to examine carefully the case of each refugee applicant lest we become unwitting accomplices to sending persons to a place where they will be persecuted or killed.
Unfortunately, there are many persons who attempt to take advantage of the international system for the protection of refugees, meaning, to be fair, that Canadian officials often face the daunting task of screening those deserving of protection as opposed to those who are trying to take advantage of the system. The dividing line is not that easy to discern, especially because many of these people come without documentation, without history and, many of them, without a real ability to be able to defend their interests and rights. As a result, it takes many months to process a refugee claim, especially because Canada receives, depending on the year, anywhere from 23,000 to 38,000 refugee claims. Our system, therefore, must be selective. We have to somehow identify legitimate refugee claimants; but our system also must be thorough and responsive enough so we never send people back who are truly in danger, never send them back into harm's way.
At present, regrettably, our system is tilted against deserving claimants because Immigration and Refugee Board decisions cannot be appealed on the basis of the merits of the case. If you are not admitted by a single adjudicator — who is not a judge, not formed formally as a judge — as a refugee claimant, you are sent back, subject to certain minimal protections.
What is the rationale behind the creation of a refugee appeal division? When Parliament passed this act back in 2001, it did so with the hope of speeding and streamlining the process for dealing with refugee claimants. A key provision of the act reduced the number of immigration appeal board members hearing each refugee case from two to one member. The quid pro quo was that this would double the number of refugee claimants who could be heard in the first instance during the same period of time because rather than having two adjudicators, there would be only one on each case. However, the quid pro quo was the establishment of an appeal tribunal so that those refugees who felt their case was not completely heard or their rights were not completely understood would have the opportunity, as any Canadian does and anyone in any civilized country has, to appeal the decision.
As we now stand, the lives of refugee claimants are in the hands of a single adjudicator in Canada. I am not suggesting they are not all trained, nor am I suggesting that any of them are not humane, but people make mistakes. People who are not judicially formed and trained are not necessarily people who could and should determine the lives and fates of people who may live or die because of the decision of a single person.
It is to guard against the potential for mistakes by individual officials that the 2001 law balanced the increased efficiency of the determination process with a new refugee appeal division that could hear the claims of individuals whose claims were rejected.
Peter Showler, then president of the Immigration and Refugee Board, testified that the risk associated with a move to single-member panels was ``. . . more than offset by the creation of the refugee appeal division.'' On the one hand, there was a reduction of the number of adjudicators who would hear each case, from two to one, but the quid pro quo did not take place. There was no appeal division that was created — it was created but never promulgated. That is what this simple, one-paragraph bill seeks to do. It seeks to create a refugee appeal division.
There are arguments about efficiency and those arguments sound tempting. We all want efficiency and speed, but that should not be the primary goal of a system that is supposed to be helping people who are running for their lives. Without the refugee appeal division, claimants who are rejected under the new system are left with no way to appeal the merits of their claims.
They can ask the federal appeal tribunal for a judicial review of their case; it is the Federal Court. However, that is not a review on the merits of the case; it is a simple determination as to whether the required form has been followed. Those of us around the table who have juridical training will understand that.
That is not an appeal, on top of which the requirements to be able to get to the Federal Court are virtually impossible for refugee claimants to fulfill. There is a cost involved in it. There are proceedings to be followed and forms to be dealt with, which are virtually beyond the availability and understanding of most of the claimants, many of whom neither speak nor understand either of the official languages.
Without a proper appeal process, Canada has no mechanism to ensure it fulfills its international commitments to protect refugee claimants. This failure has been noted by the United Nations High Commissioner for Refugees, who wrote to our government that, ``An appeal mechanism is a vital part of the refugee determination process.''
We are the only civilized country that does not have a refugee appeal tribunal for refugees. That is not a good record. That is not a very good place to be. This view that Canada is not fulfilling its international requirements has also been expressed by the Inter-American Commission on Human Rights and by the United Nations Committee against Torture.
I say that Canada is the only country that does not have a refugee appeal board. That is not quite correct. Italy and Portugal do not have an appeal tribunal, but have mechanisms in place, without going into detail, that protect the rights of refugees in a way that Canada thus far has not followed.
We, as parliamentarians, all of us, take pride in the fact that we try to protect the most vulnerable in our community. We should take pride in protecting those who are most vulnerable in our international community and who seek safe haven in Canada.
I have a certain personal interest in this bill and in the refugee process because in the 1930s and early 1940s, Canada could have saved many victims of Nazi tyranny and chose not to do so. The motto of Canada at the time — a shameful one for which we are all responsible — was ``none is too many,'' meaning no Jews should be admitted.
That was the work of a single person who was in charge of immigration, who prevailed upon the then Prime Minister to ensure no Jews would be admitted. There is an interesting book by Professor Irving Abella, husband of Madame Justice Rosalie Abella of the Supreme Court of Canada, and Professor Harold Troper. The book is appropriately entitled, None is Too Many. If you want to be embarrassed about being Canadian, read the book.
I urge you, honourable senators, to support this bill so we can send a message to refugees all over the world that refugee protection is important to us; that refugee protection will be done properly; that refugee protection will be available to people who seek refuge in a way that protects Canadian interests to ensure they are not abused, but which also protects human beings who require the protection. To do otherwise would allow the problem to grow and force some deserving people back to the persecution from which they have fled.
I cannot help telling you a story about a refugee claimant, whom I will not name, who was forced to go back to Africa where her daughter would suffer genital mutilation. An adjudicator said that since she was not being persecuted, she could not have refugee status and her daughter had not made the application for refugee status so she had to go back to Africa. That is not Canadian.
I am happy to answer questions if you have any.
[Translation]
Nicole Demers, Member of Parliament (Laval), House of Commons: Madam Chair, thank you for allowing us to present our situation regarding Bill C-280.
I had prepared a statement, but after listening to Senator Goldstein's eloquent speech, as I am not a lawyer and have no immigration expertise, I will be talking to you about the fundamental reasons that led me to bring this bill forward and about what we should focus on.
This is not a partisan bill. As Senator Goldstein said so well, it is a bill that appeals to our humanity. This bill appeals to why we were nominated and elected: to respect and cause to be respected the rights of all beings who choose Canada as a country, who seek refuge here because they have no other choice, because Canada is their last refuge.
I would say to you that I agreed to sponsor Bill C-280 because, in a previous life, I faced situations in which individuals were returned to their countries of origin because they had not obtained refugee status, sometimes after years of living here. In one case, a young man whom I had met while working at the Meridian Hotel, a young Chilean, bore the marks of the torture he had suffered under the Pinochet government. That young Chilean arrived here, worked and, after four years, was denied refugee status and was returned to his country. We never knew what happened to that young man. I do not know whether he is still alive; I do not believe so. I subsequently met other individuals in similar situations.
A few years ago, when I was elected as a member of the House of Commons, people began to call at my riding office to submit refugee status problems to me, and that is when I realized that the Department of Immigration does a remarkable job. That has to be said, because a number of people ask to come and live here and the Immigration Department does a remarkable job in that regard.
A number of people come and live here and obtain citizenship. Those people come here as refugees. And those people do not have the same chance, do not have the same opportunities because only one person decides for them.
On balance, there is no equity, no justice. That is what I was seeking; that is what I wanted to do by bringing Bill C- 280 forward, because those who preceded me had thought of it; this was part of the act; it was already in the act, but it had not been put forward. All we had to do was to put that part of the act forward.
I saw part of the list of witnesses who will be heard. I am satisfied, and I am convinced that, after hearing those witnesses, you will agree that this bill should move forward and that the refugee appeal division should be established to ensure that any person seeking refugee status here obtains justice, and that they are heard and can say: I requested refugee status, one person denied it to me, but I had the opportunity to have my application heard by an appeal division that was truly neutral and was able to make a decision that I considered fair.
I asked Senator Goldstein to sponsor this bill in the Senate because, after meeting him and speaking with him on a number of occasions, I understood that he was a fair and equitable man and a man of great wisdom. It is therefore for that reason that I asked him to sponsor the bill. He was willing to do so. It must be said that it is unusual for a senator to agree to sponsor a bill of a Bloc Québécois member. That is all the more praiseworthy, and I thank him very much for it. I work with a number of you on various friendship committees, and I know how important the human aspect is for you. I therefore appeal to that humanity in you, and I hope we will achieve a conclusive outcome and that this appeal division will be brought forward.
[English]
Senator Di Nino: Welcome to both our colleagues: Ms. Demers and Senator Goldstein.
You obviously know which side of the fence I am on. I am the critic on this bill and I have spoken on it — opposed to the bill. A number of issues I think should be of concern to all of us.
The first one deals with the justice that both of you so eloquently expressed. It seems there is a wide body of opinion which suggests that justice will not be achieved by this bill. On the contrary, this wide body of opinion would suggest that justice would actually be delayed.
The Canadian system is judged to be — both internationally and by the UN — as one of best in the world. On refusal of a potential application, there are three separate appeal processes in place today. Adding a fourth process, it has been widely suggested, will simply delay the process, not only for these folks but also for everyone else on the line. Could you both comment please?
Senator Goldstein: Thank you for the question, senator. You are quite right that in our jargon, justice delayed is justice denied. Certainly, if the creation or the implementation of an appeal process would delay justice, then we would have to have second thoughts about that implementation. However, a number of issues are implicit in the question. First, and perhaps most important, is that the Immigration and Refugee Board is supposed to have a complement of a little more than 160 adjudicators because they are dealing with thousands upon thousands of questions and claimants. However, there are 58 vacancies on that board, which means that the board is functioning at only two-thirds capacity. Again, I do not want to be partisan, so I imagine, although I do not know, that there are good reasons for not naming a full complement of adjudicators. We have to ensure that the board, in the first instance, has a full complement of adjudicators so that it can do its work without a backlog.
Second, I would ask you to bear in mind that the implementation of an appeal board would have the very salutary effect of creating a tribunal that, in turn, would create precedents and establish principles, policy as to what could be adjudicated. That would speed up the immigration process of adjudication in first instance because none of these adjudicators would have to search for principles or create their own. They would be able to follow precedent. Our experience in other courts of this nature is that far from creating delays, the implementation of an appeal process hastens the process because it eliminates delays that result when adjudicators have to determine new principles in new ways.
You have indicated that a claimant who has been refused refugee status has three tribunals to which he or she can appeal in order to have that adjudication reversed. That is both true and untrue. It is true on paper but it is not true in fact. Let us take one at a time.
The Federal Court is one of three places that a refugee claimant, whose status has been refused, can go. To get there, the claimant needs leave to appeal from the Federal Court and the money to pay to get to the Federal Court. Either the claimants need the ability to pay a lawyer, which very few claimants have, or a sophistication to be able to do it themselves, which most of these people simply do not have. In addition, many do not speak English or French well enough to do it. The result is that the Federal Court alternative is not an available alternative. More than 90 per cent of the claimants who have tried to get to the Federal Court have failed in their applications for leave to appeal. Frankly, that appeal process is theoretical only and in reality, is truly not available to refugee claimants.
A second alternative, Senator Di Nino, is the pre-removal risk assessment procedure. Under the PRAP, a claimant who has been refused refugee status is able to appeal to civil servants to assess that the refused claimant runs a serious risk if there is a forced deportation to his or her country of origin. Statistics show that less than 3 per cent of claimants succeed in their efforts, so it is not an appeal process at all.
The third process is an application for humanitarian and compassionate consideration, called the C and H. The measure is discretionary. A claimant can be deported before that process is undertaken or a decision reached. The UN Committee against Torture has determined that stays on humanitarian grounds are not an effective means for protecting the rights of refugee claimants.
The three possibilities that some people say refugees have to get a fighting chance of being able to stay once their status has been refused are neither realistic nor attainable. If they are not attainable, then we have to treat them as non- existent.
[Translation]
Ms. Demers: Everything Senator Goldstein said is true. It is like in a trial, when one counsel calls in a psychiatrist or a psychologist and the other counsel calls in another. For every person who says that an appeal division would complicate the process, another will tell you that it will simplify recourse for a refugee.
When an individual seeks refugee status, he or she does not have the money to go to the Federal Court of Appeal. It is ridiculous to believe that an individual seeking refugee status will arrive here with thousands of dollars.
The pre-removal risk assessment does not provide for a process for the review of the application's merits. We really need such a process. It is truly essential that the appeal division be put in place.
[English]
Senator Di Nino: Five consecutive ministers of citizenship and immigration, three from the previous government and two from the current government — different parties, different philosophies — have refused to implement this section for some of the reasons that I just mentioned. Former Minister Volpe, former Minister Strahl, current Minister Finley and the others all suggested that these processes exist and believe them to be fair. These people understand the system better than anyone else does, and we are not talking about the bureaucrats, although we will talk with them a little later today. The fact remains that five ministers of immigration have said that this system will delay justice and, in effect, will do little to address the shortcoming. They have actually stated that the proposed system will make it worse.
I have one specific question to Ms. Demers and to Senator Goldstein as well. Section 73 of the IRPA would allow the Minister of Citizenship and Immigration to seek leave for judicial review from the Federal Court with respect to any decision made by a refugee appeal division.
Why did you decide not to include this in the bill, in effect, to give the minister the same right as the refugee applicant?
Senator Goldstein: I have a very easy answer. That section already exists in the law. When the minister proclaims these three sections, I hope she will proclaim that section as well. It is very simple. I do not have to force the minister to proclaim it. If she wants that recourse, all she has to do is have it proclaimed. It is there in the law, the same as these things are available in the law.
With respect, I do not think that the minister can hide behind that and say it is not fair for the refugees to get a second kick at the can when I cannot get one. The fact is the minister can get a second kick at the can the moment the refugee appeal board is implemented. At that moment, the minister will implement section 73 and that will be the end of it.
It is true that five ministers have not dealt with this issue. It is also true that a previous minister put it into the law. It is five against one. I am not weighing ministers against ministers. Each minister has not wanted to proclaim it, but each minster has stated a need to deal with the broader refugee and immigration issue before proclaiming this section.
For seven years, we have had refugees deserving haven and refuge not getting that haven and refuge. There is nothing to prevent us from implementing this section. If there is a fundamental and wholesale change in the immigration and refugee law, I will be a happy participant in that change. I am sure that anyone in any stripe of government would be in good faith doing it. Until that revamping takes place, give these refugees a chance.
[Translation]
Ms. Demers: I think it is very important to recall that, when this legislation was enacted into law, and we all know the process for enacting legislation, it was put to a vote in the House of Commons and passed by a majority. It subsequently came to the Senate, was passed in the Senate committee and accepted by the Senate so that it could then be enacted.
So I believe this legislation was enacted because people knew it was the right thing to do, that it was proper and fair for refugees. It was not subsequently implemented because there were deficiencies; there was not any will to implement it immediately because something else was always put first. Now, as responsible people, we have a duty to implement this refugee appeal division. We can no longer wait for a minister to decide that now is the time to debate the merits. The debates were held before the legislation was enacted. It was enacted because the committee that discussed it here — which may not have been this one — found that it was a good act, since it was accepted and referred back to the House of Commons.
[English]
Senator Jaffer: Thank you very much to both of you for your hard work. As a refugee in this country, I cannot thank you enough for the work you are doing.
Senator Goldstein, before you came to the Senate, you were a respected member of the bar. My colleague said that there were three appeal processes. As I understand them, there is only one appeal process. The pre-removal risk assessment and application for humanitarian and compassionate consideration are bureaucratic and administrative processes. I do not believe one would consider them an appeal in the sense of an appeal process before a tribunal.
Senator Goldstein: You are right, Senator Jaffer. The other two are not appeal processes. I must say that the recourse to the Federal Court is also not an appeal process. It is what is called a revision process or what the French call ``recours en cassation.'' It is a process that does not permit the claimant to adduce proof or evidence. All it does is look at the technical fulfillment or lack of fulfillment of the statutory requirements of the refugee board for the claimants that are able to get there. As I indicated, more than 90 per cent of the claimants cannot even get leave to appeal, let alone get to appeal. It is not an appeal process, it is a revision process.
What we are looking for, the saint who is sitting beside me and me — I am not a saint. I do not even qualify.
Senator Di Nino: We can make an exception.
Senator Goldstein: Thank you. I will read you a quote from the husband of a Moroccan woman who was deported despite her fears of persecution. The man wrote, ``It seemed like no one was listening to us. We just wanted an appeal like normal people in Canada have.'' Does that not tell the story?
Senator Jaffer: There are a lot of questions about the backlog. We are all concerned about the backlog. Would this process not increase the backlog?
Senator Goldstein: I think it will not increase the backlog. I do not want to be critical of the current government. I do not want to make this a partisan issue. The board was understaffed in previous governments. Therefore, this government has committed no greater sin than any previous government and no lesser sin.
The fact of the matter is that the backlog — and there is a backlog — results in large measure from the fact that the refugee board is understaffed. It has two-thirds of the number of people that it should have. I hope that independently of whatever may happen to this bill — and I intend and hope to fight for its adoption — that this government and any future government will completely staff the refugee board so that refugees can get a fair crack within a reasonable delay.
The question you asked is whether it will increase delays. I think it will decrease delays. Currently, adjudicators are called upon to establish principles for every single case they hear. An appeal division would have the very salutary affect of establishing principles which the lower court, so to speak, does not have to establish but simply has to follow. That is called precedent in our parlance. Before our chair went on to greater and better things, she was an eminent attorney.
The experience of judicial processes is that where there is an appeal process available, the principles enunciated by a Court of Appeal, called stare decisis in Latin, causes the lower court to follow the principles. They do not have to re- establish principles. I think adjudication would be faster.
I want to be fair. If an appeal process were established tomorrow morning, a host of people whose status was refused in the first instance would appeal. That is what an appeal process is all about. We have appeal courts across the country. People have a right to go to appeal. Canadians have that right and refugees should have that right.
Senator Jaffer: Ms. Demers, I understand you were in Parliament when this legislation was first introduced.
[Translation]
Ms. Demers: I was not in Parliament at that time. I arrived in Parliament in 2004.
[English]
Senator Jaffer: In understand that the legislation stated one member plus the refugee appeal division. You are saying that one part is in place and the other part is not in place. Is that right?
[Translation]
Ms. Demers: That is correct. A large portion of the act has been put in place, but the part concerning the refugee appeal division has not.
[English]
Senator Jaffer: You introduced the issue of sanctuary in the other place. Currently, people who seek religious sanctuary have felt that there is not a legal processes for them to turn to. Therefore, they appeal to greater moral authority and to Canadians in general. What is your view?
[Translation]
Ms. Demers: You are entirely right, Madam Chair. I have had occasion to visit people who have sought refuge in churches, in places of worship, because they had no choice but to take refuge in those places.
One young man, among others, a refugee in Montreal for a year, had claimed refugee status. He was refused. And yet he was a young Lebanese man who had been a member of an army, under the orders of a person who was accepted as a refugee. However, this young man was denied refugee status. He did not understand, could call no one and had no money to go to appeal court. He had the support of the church that housed him. However, the churches these days are not rich. Most of the churches agree to shelter refugees out of charity. We know perfectly well that these individuals are returned to their countries, very often to die there.
Many people are forced to experience these horrors every day. The Association of Bishops, which takes care of refugees, came to testify before the House of Commons Immigration Committee to tell us how difficult it was, even for churches, to have these individuals in their institutions. If they live in the church, they very often live in the vestry in a place of worship used for religious purposes. They cannot go outside or communicate with other persons. People come and see them only when they go to church.
It is very hard to remain imprisoned for a year in a church, in a place that is supposed to be one of harmony and peace. The situation is very difficult for these individuals. Thank you for having raised that point.
[English]
Senator Goldstein: That strikes an interesting cord for me because ``sanctuary'' is a Mosaic concept that is at least 3,000 years old. One of the first laws that Moses promulgated was a law of sanctuary. People who had no hope of surviving were able to claim sanctuary by going to a particular religious area. People should not have to do that. Refugees have a right to claim refugee status. It is a right, not a privilege. Refugees should be permitted to claim that status and if they are refused that status, then they should have a right to go to an appeal court, as anyone else would have the right to do. Once the appeal court has refused to grant refugee status to the claimant after reviewing the case, then justice has been done. Those still seeking sanctuary after the appeal process can continue to do so, but there would be much less sympathy from the clergy. Perhaps the committee will hear witnesses from the clergy on this bill. The clergy may sympathize with people who seek sanctuary because they might not have been given a reasonable chance to state their case. They have the right to state their case; they are human.
Senator Trenholme Counsell: It is a privilege to attend this committee, which I regard with very high esteem. I am here instead of Senator Munson who is with his mother who sadly, broke her leg.
My observation can be put as a question. It seems to me that the right thing to do is to pass Bill C-280. All of the reasons that I have heard and read, with a few exceptions, are systemic reasons and have nothing to do with human rights. It will add another layer to the process and increase the backlog. It has been suggested in what I have read that it will require more resources. Yes, perhaps it would but it would require more social assistance. None of these things adds to the argument at all because they are not about rights. Yet, the bill is about rights. What is your view of my perception, as a first-time participant, of the bill and the arguments?
Senator Goldstein: You are perfectly right, as you often are senator. I do not know your information resource, but it should have told you that refugee claimants do not just sit and wait for their status to be determined. They work, send their kids to school and pay taxes; they are not a drain on society. They are not a drain because they do not have the right to social services, with certain exceptions. Far from draining society, they contribute to society. If they are not truly refugees, they should go through the normal immigration process. I would like to say that we could open our gates to everyone, but we cannot do that; no country can do that. If they are refugees or think they are refugees, then they are entitled to a kick at the can, as stated by a United Nations treaty. Every civilized country says that with the exception of Portugal and Italy who have other procedures. If a refugee is refused first time around, they will be given the right of appeal. To suggest that these people are a drain on society is just not true.
Senator Trenholme Counsell: You mentioned two countries that do not have a refugee appeal division. Does the United States have a refugee appeal division?
Senator Goldstein: Yes. We have been criticized by the United Nations for not having one; written criticism.
Senator Trenholme Counsell: Would the process recommended in this bill be similar to that of other countries with an appeal process?
Senator Goldstein: Yes.
Senator Trenholme Counsell: Is it not particularly different.
Senator Goldstein: No, it is consistent with the United States, England and all the European Community countries, with the exception of Portugal and Italy.
Senator Trenholme Counsell: Do you agree that there is no sound factor in terms of human rights that would prevent implementation of the bill? It is the law but it has not been promulgated.
Senator Goldstein: On a purely human rights basis, I do not think anyone, not even Senator Di Nino would argue with that and he is the critic of the bill. He has been doing an excellent job on the floor of the Senate and I do not think that he has any criticism of the bill on that basis. His criticism is not based on human rights, but other factors.
I should tell you that I agreed with the leadership of the government that if this bill is passed, I would agree to a proposed amendment to delay implementation for six months. I will take that time to create and staff this type of tribunal. We have to be realistic about these things.
The Chair: You said we cannot open the gates to everyone. There is a fundamental human rights issue here. There is a refugee process and thousands of homeless people in United Nations refugee camps. We have thousands of people who followed the rules and who, through no fault of their own, find themselves waiting. What we are balancing is what is fair and just to those who have found themselves on our shores. How can we efficiently deal with these people so that we have the absorptive capacity to take others?
Going back to elemental criminal law, would you not agree that process and procedure are as important to justice as other issues? Do you agree that we can create injustices by process and procedure as well as by substantive law? How do you factor in delays by virtue of saying we want an appeal period?
I understand other countries have grounds for appeal in some cases, not only the right to appeal on merit, et cetera. Have they not narrowed the scope?
Senator Goldstein: Some have and the refugee appeal board can establish precedents that will delimit the scope of appeals. Not everything has to be appealed. There has to be some indication of error or excess of jurisdiction. These are all things that we know occur in the appeal process.
You raise an existential problem, Madam Chair, which implies that the admission mechanism into Canada is a zero sum game. If we admit more refugees, we admit fewer immigrants. With respect, that is not correct.
The Chair: I am saying we can only absorb so many refugees at one time. If I used the word ``immigration,'' it was not my intent.
Senator Goldstein: I may have misunderstood you.
The Chair: We can only process so many refugees. We determine what we can handle. It is not an open door policy.
Senator Goldstein: No, it is not an open door policy. Again, an appeal tribunal will be able to establish principles on the basis of which people will or will not be able to be admitted as refugees. As the criteria are established and become known in various countries that spawn refugees, it will become known that you can obtain haven in Canada if you are A, B or C but not if you are D, E and F. That will probably diminish the number of claimants forthcoming because the principles will be understood.
There is no one in Canada or in any other country that can tell you the principles of admission of a refugee claimant because there are no criteria.
The approximately 90 adjudicators proceed on whatever basis they choose to proceed. Very little structure is available to them. No precedent is available that is binding upon them and they do what they choose. They try to do their best, but their best is not necessarily good enough. Superior court justices also try to do their best, but we have appeal courts because they sometimes make mistakes.
The Chair: I was around when the immigration bill was passed and I wonder if our witnesses can help me. My understanding is that the government of the day, in 2001, did not include the refugee appeal division. It came from a committee of the House of Commons. Is that correct?
[Translation]
Ms. Demers: Madam Chair, I cannot really answer you, but I promise to find the answer and to send it to you.
[English]
The Chair: My recollection is that was after study in the House. That may be wrong since it was some time ago.
Senator Goldstein: I find that surprising. It may be, but we have testimony from the then chair of the board who said that the diminution of the quorum of judges from two to one, which is what this bill did, would be counter-balanced by the creation of an appeal division. I do not think it was an afterthought by a committee; it was something that the government initially sponsored.
The Chair: We can clarify that by having our researchers look into the testimony.
Senator Goldstein: Your researcher is excellent. Therefore, you will not have a problem finding that answer.
Senator Di Nino: There is no question about the laudable principle of this bill. I would find it very difficult to find anyone in Parliament that would disagree with it. However, the point being made here is that four previous ministers, plus the current minister, have said that introducing this bill would make things worse. I think both former ministers said that to introduce the appeal system would completely bring the system to a halt. We need to put on the record that the people who had the responsibility of dealing with the issue as ministers believed that the introduction and passing of this bill would actually end up making things worse. As you said, ``justice delayed is justice denied.''
I have one question for the sponsor of the bill. The question of transitional provisions is not in this bill. The question has been raised about who would be eligible for this new appeal. There is concern that with this legislation coming into force, it is possible that all of the denied cases since 2001, will be eligible to apply under this law. That could mean 40,000 plus people.
Do you know the answer to that question?
Senator Goldstein: The bill already contains transitional provisions; therefore, it is not necessary for this bill to contain transitional provisions. The Immigration and Refugee Protection Act already has transitional provisions because the creation of the appeal tribunal was envisaged by it. Although it is very important to ask that question because we need clarity, I think that question is answered within the bill itself.
Senator Di Nino: With the introduction of Bill C-280 — I did not say this bill did not have transitional benefits; indeed, this issue was not addressed — would all these folks who have been denied over the last seven or eight years have a right to appeal?
Senator Goldstein: No, they would not. In an ideal world, I would like them to have that right, but that is not what the law says.
I will go back to what you said earlier — that all ministers have said in various ways that it is not necessarily appropriate. I will quote two ministers. One of them was Minister Caplan:
By consolidating several current steps in protection criteria into a single decision of the IRB and, moreover, by combining increased use of single-member panels at the board with an internal paper appeal on the merits, we will see faster but fairer decisions on refugee claims.
Far from every minister saying they do not want to deal with this, some ministers have said they do want to deal with it.
Mr. Volpe said that while he had not closed the door on the refugee appeal division, he just did not see the same urgency for some of the other priorities at that time; there was an increase in refugees going through the system.
With great respect to Mr. Volpe, whom I love — he is a wonderful person — you tell me if there is any logic in that statement. He does not see urgency. Everyone does.
Senator Di Nino: For clarity, Minister Volpe voted against this bill in the House of Commons. That should be on the record as well.
Senator Jaffer: You said earlier, Senator Goldstein, that the Federal Court would be doing a very narrow review. For the record, I would like you to clarify how the refugee appeal division would be different. How expansive would it be and why is that process better?
Senator Goldstein: The Federal Court reviews the form of the claim and the form that the decision of a lower court took. It does not review the merits of the claim. That is a very narrow jurisdiction.
Senator Oliver: It is exactly and precisely what they do.
Senator Goldstein: That is right. As you say correctly, Senator Oliver, it is a revision process and not an appeal process. The appeal process would allow appeal claimants to have the merits re-examined by someone. This is too important for just one person to decide the fate of a refugee claimant.
I will respond, if I may, to Senator Di Nino's comments. It is true that Minister Volpe and others voted against Bill C-280, when it was before the House of Commons. However, he voted in favour of the bill in 2001, and so did every other minister and everyone else when the appeal division was indicated in the bill, which they passed and sponsored.
The Chair: Thank you, Ms. Demers and Senator Goldstein. You have withstood the cross-examination here rather well.
We are just beginning to look into the merits of Bill C-280, so I am sure you will watch this committee's progress through the bill. We thank you for coming to make your opening statements.
I welcome our next panel of witnesses from Citizenship and Immigration, Ms. Andrea Lyon and Mr. Dick Graham; and from Canada Border Services Agency, Ms. Susan Kramer. I presume you have short opening statements on policy issues for the committee's study of Bill C-280.
Andrea Lyon, Assistant Deputy Minister, Strategic and Program Policy, Citizenship and Immigration Canada: Thank you, Madam Chair and honourable senators, for this opportunity to speak to you today. I am joined by Dick Graham, Acting Director General, Refugees Branch at CIC. Along with my colleague from Canadian Border Services Agency, we will answer your questions following my brief remarks.
The committee has heard the government's concerns with respect to Bill C-280 and that the government opposes this bill.
Canadians can be proud of our in-Canada refugee status determination system and our humanitarian tradition. Canada meets and surpasses its international commitments and the requirements of the Charter of Rights and Freedoms.
The Government of Canada has an obligation under international law not to expel or return any person to a country where they may face a risk of persecution, torture or death. In fulfilling these obligations, we assess claims made by refugee claimants who have many opportunities to show why they should not be removed from Canada. They have access to the Refugee Protection Division, RPD, of the Immigration and Refugee Board, IRB, where independent, well-trained, well-informed decision makers hear their stories and review the information put forward to support those stories. Currently, it takes an average of 14 months from the time the IRB receives the claim until a decision is made. As well, claimants have access to the pre-removal risk assessment, PRRA, prior to their being removed from Canada. Unlike the refugee appeal division provisions in Bill C-280, the PRRA allows new evidence to be brought forward beyond what was heard at the IRB. They have the right to remain in Canada during these proceedings. The average PRRA takes approximately nine months.
Refugee claimants can apply to stay in Canada for humanitarian and compassionate reasons, including reasons of risk. They can and do make such applications and many are accepted. About one-half of the applicants for permanent residence on humanitarian and compassionate grounds are failed refugee claims.
Finally, refused refugee claimants can apply for leave for judicial review of each of these decisions. Each application for leave adds at least another four months to the process. If an applicant applies for leave for a judicial appeal at every decision step, he or she can add another year or more to his or her stay in Canada. If the Federal Court grants leave at any stage, it can take approximately another year to come to a result. Currently, some 76 per cent of failed refugee claimants make applications for leave for a review of an IRB decision. Only 2 per cent are overturned by the court and sent back to the IRB for a re-decision. Yet, Bill C-280 would practically duplicate this process.
When the Federal Court reviews a decision of the IRB, it does so with respect to the issues of fact and law, much as the refugee appeal division would as proposed in Bill C-280. The Federal Court can send cases back to the IRB based on unreasonable errors or findings of fact. It has sent cases back for errors relating to a claimant's credibility, medical and gender persecution claims, and his or her ability to access protection from the state. Again, this is similar to the jurisdiction as proposed in the refugee appeal division provisions.
Ordinarily, claimants remain in Canada while the judicial review is conducted. During that time, they continue to have access to a range of benefits provided by the provinces, including education, social assistance and to medical and hospital services provided by the federal government through the Interim Federal Health Program.
While we are proud of our fair and generous system, we expect it to work efficiently and effectively. The refugee appeal division provisions in Bill C-280 would add a fourth recourse to an already complex and lengthy refugee process. In the context of a rising inventory of claims awaiting decision at the IRB, an extra layer could bring the refugee system to a standstill. All of the claimants, who fail at the refugee appeal division, as provided for in Bill C-280, will have the right to apply for leave for a Federal Court review of that decision.
Implementing the RAD provisions would require resources in the tens of millions of dollars, including start-up costs and ongoing costs of operations. These costs would be borne by the provincial, territorial and municipal governments as refugee claimants would continue to access a range of benefits, including social assistance. We estimate that a refugee claimant who accesses only the refugee system and the PRRA and applies for leave to the Federal Court and who fails at each level can stay in Canada approximately three years. Depending on the circumstances, a humanitarian and compassionate application can add another two years to this process. The addition of the RAD would add at least another five months to this already long refugee process based on the assumptions that the refugee appeal division would be given a fresh start, without a backlog on day one, and that it would be implemented with a full set of trained decision-makers in place.
A final consideration is that the number of refugee claims has risen from 19,000 to 28,000 in the last two years. With rising intakes for the first two months of 2008, we are predicting up to 40,000 refugee claims this year. Taking this into account, we need to consider that the addition of a refugee appeal division likely would bring the system to a halt. We are seeing large and ever-increasing inflows of claimants from countries that generally do not produce refugees, in the sense that the acceptance rate for claimants from such countries is very low. This means that many are coming to Canada to benefit from what the system has to offer without going through the normal immigration processes and their numbers risk overwhelming the refugee system.
I will leave it to my colleague from CBSA to speak to the problems that the addition of the refugee appeal division will have on their removals plan for the future. We understand this effect to be considerable.
Adding another layer to a process that is already costly and time-consuming would not be fair to taxpayers or to refugees who need our help. For these reasons, the Government of Canada does not support Bill C-280.
Susan Kramer, Director, Inland Enforcement, Canada Border Services Agency: Thank you for the opportunity to appear before you today and to provide you with information on immigration enforcement as it relates to the implementation of the refugee appeal division, RAD.
Canada has an internationally recognized system for protecting those fleeing persecution, torture or death in their home country. Individuals can make refugee claims that are assessed by the Refugee Protection Division of the Immigration and Refugee Board. In addition, individuals are entitled generally to apply for pre-removal risk assessment by Citizenship and Immigration Canada prior to removal. Finally, individuals may also apply to Citizenship and Immigration Canada for permanent residence in Canada based on humanitarian and compassionate grounds.
Failed refugee claimants are entitled to due process before the law. A failed refugee claimant can ask the federal court to review any decision made under one of these processes. In the case of a failed refugee claim, the Federal Court's review would be essentially the same as the paper review conducted by the refugee appeal division.
Adding another appeal mechanism to Canada's refugee determination process will have an impact on the integrity of the refugee program. Currently, individuals have access to numerous processes to ensure that they are not removed to a country where there is a risk of persecution, torture or death.
The appeal process will not only lengthen the time it takes for a final decision to be rendered but it will also weaken the existing system as fewer individuals will be removed from Canada in a timely manner. It is anticipated that the majority of individuals who are eligible to apply to the refugee appeal division will do so and that this large inventory will create a significant backlog of cases. As well, this new process may attract more individuals to come to Canada to make refugee claims as they know it will take even longer to be removed should their claim be rejected. Finally, refugee appeal division members will be given powers that not even Federal Court judges have, specifically the authority to substitute a decision made by the Refugee Protection Division with their own decision.
Under immigration legislation, the CBSA as a statutory obligation to remove any foreign national who has an enforceable removal order as soon as it is reasonably practical. It is reasonable to assume that 100 per cent of the individuals who are entitled to appeal the refugee determination decision will do so. This will mean that removal of those who receive a negative refugee determination could be delayed from five months to several years. Currently, it takes an average of two and a half years to remove a failed refugee claimant from Canada. The implementation of a refugee appeal division will increase this average to three years. While the CBSA will respect the individual's right to appeal the refugee determination decision should Bill C-280 be passed, it will cause significant delays to the removal of failed refugee claimants. By adding a minimum of five months to the removal process, an appeal to the refugee appeal division is another challenge that must be overcome as it is more difficult to remove individuals when they have been in Canada for a significant length of time. Each year, the CBSA removes between 10,000 and 12,000 persons to maintain the integrity of the refugee and immigration programs. By removing individuals who are found not to require protection, the CBSA is ensuring that only those who are truly in needs of protection are allowed to remain in Canada. In the past five years, between 70 per cent and 75 per cent of all the CBSA's removals were failed refugee claimants.
The implementation of the refugee appeal division would result in fewer removals because there would be fewer persons added to the removals working inventory and because removals are more difficult with the passing of time. At present, the CBSA has a removals working inventory of approximately 20,000 cases. Should the refugee appeal division be implemented, the CBSA anticipates that its removals working inventory would be reduced by approximately 50 per cent. The number of removals will drop significantly if the removals working inventory decreases by 50 per cent because each year almost three-quarters of CBSA's removals are failed refugee claimants. We estimate that in the first year, removals would drop to approximately 7,000 cases from the current level of 12,302. This number will likely increase in subsequent years but is unlikely to return to current levels. The initial drop in the removal working inventory will prevent it from returning to current levels as future failed claimants will continue to apply to the refugee appeal division. It is unlikely that the decision-making process of the refugee appeal division will be able to keep pace with the number of new applications.
Most importantly, the implementation of the refugee appeal division will delay the removal of the approximately 3 per cent to 4 per cent of failed refugee claimants who are considered high priority removals for the CBSA. These include persons who pose a risk to national security, are involved in organized crime and crimes against humanity, and criminals.
The removals program faces many challenges in its efforts to removal individuals who are inadmissible to Canada. There are a number of challenges that the CBSA must overcome to affect an individual's removal from Canada. These challenges include obtaining travel documents, locating uncooperative persons who go into hiding, waiting for an individual to complete a prison sentence, and respecting an individual's right to due process. Adding yet another appeal will not only delay the process for at least five months but also will add to the already difficult challenge of removing individuals from Canada.
Implementing the refugee appeal division is also costly. Millions will be required to hire and train new hearings officers. During the second reading of Bill C-280 in the Senate, it was proposed that an implementation delay of 180 days be considered from the date of Royal Assent. While the CBSA would be grateful for this delay, it would still be inadequate in terms of the time required to hire and train new hearings officers and to establish effective processes for the refugee appeal division.
Canada's refugee determination system is already fair and generous. Critics maintain that the current system is too slow and by adding yet another level of appeal to the refugee process, it will only become longer.
Senator Di Nino: You were present when we had the discussion with the sponsor of the bill in the House and the sponsor of the bill in the Senate, Senator Goldstein.
My message that needs to be clarified is that this government is not attempting to act as the bad guy. The issue that resonates with me that a number of ministers of immigration, three from the previous government and two in the current government, have said that this system is working as well as it can work. They have said that it is fair and probably one of the best in the world and that adding this extra layer will create further delays and problems. In effect, it will not serve the laudable principles of accepting more people and processing them a little quicker.
Ms. Lyon: Some of those concerns that you outlined are very much consistent with the government's views as my colleague from CBSA and I just outlined. You are quite right in acknowledging that the Canadian system has an excellent international reputation for being fair and generous. The system works reasonably well and offers, we think, multiple opportunities for refugee claimants to make their cases and to have them reviewed at the Federal Court level. The addition of another layer of review, as you pointed out, would add cost and time and would serve to constrain the system further, which is not in our interests and, certainly, not in the interests of refugees.
Senator Di Nino: I have two quick technical questions. Bill C-280 does not include the implementation of section 73, which would allow the minister a balanced right to appeal the decision of the PRRA. We were told that does not have to happen because the system is such that if the minister wishes to use it, he can do so by implementing section 73. Is that correct in your opinion?
Dick Graham, Acting Director General, Refugees Branch, Citizenship and Immigration Canada: Yes, it is true that the government could implement that section and bring it into force on the same day that the rest of the bill was passed.
Senator Di Nino: We discussed the issue of transitional provisions. If this bill were implemented, would we have a huge backlog of folks to 2001 and 2002, which would add 40,000-50,000 people to the system?
Ms. Lyon: We think that the transition system would require clarification that such potential exists.
Mr. Graham: The provisions that were put into the original Immigration and Refugee Protection Act, IRPA, do not apply in today's context because they were set on a time date that went back to June 28, 2002. They are no longer applicable to the legislation being brought forward. Something new would have to be put in there or the day that it is proclaimed, it would come into force and all sorts of people would be either able to apply or would think they were able to apply. One of our concerns is that a group exists that, from June 2002 until today, have made claims and have been refused. A large part of that group may think they have claims. They would put claims and their lawyers would be willing to take them ahead and would initially overwhelm the board with many applications. The board would then be in the position of refusing them and going to the Federal Court for a decision as to whether or not these people did, in fact, have a right to apply. Whereas normally, common law might stand on our side, we are not certain it would and we do not know how the courts would sort that one out.
Senator Di Nino: The commentary that has been heard on this issue from a variety of different people, including current to past ministers, is that the problem we are facing is that we already have a backlog of some 900,000-plus people in the system, a lot of them in the refugee area. If you did not have such a huge backlog, would your position be any different?
Ms. Lyon: I think you need to look at the basic recourse that is available to refugee claimants. Our position would be the same based on the considerable opportunities available to refugees. They have recourse at various stages at the IRB through the PRRA, through the humanitarian and compassionate recourse, and then access to the Federal Court and potentially to the Federal Court of Appeal if there are issues of systemic concern. They have considerable opportunities to have their cases reviewed.
Senator Jaffer: I want to thank all three of you for appearing. I know about the very good work you do. You save lives. I have heard you state many times how fair and generous our system is, but I have never heard you say it was perfect. I think you will agree with me that mistakes do occur in the system.
Ms. Lyon: I do not think any system is perfect.
Senator Jaffer: That is what we are talking about is when a system is not perfect, how do we make sure there is a remedy? Is that not what we are talking about?
Ms. Lyon: Absolutely.
Senator Jaffer: There have been discussions on the three-appeal process. The way I understand it — and please correct me if I am wrong — the pre-removal risk assessment is for if there will be torture or persecution if the person is removed. It is more about the country conditions when they return. That is the assessment; correct?
Mr. Graham: In regard to the pre-removal risk assessment, other than for people who are considered serious criminals or members of organized crime, security risks, for everyone else, they are looking at exactly the same criteria as are looked at by the Immigration and Refugee Board. They are looking at the Geneva Convention, which looks at people in fear of persecution for reason of religion and other beliefs, membership in a social group. They are also looking under the Convention against Torture and under aspects of the Canadian Charter of Rights and Freedoms, about people being treated in a cruel and unusual way in their country.
The answer is no; in fact, they are being assessed under exactly the same criteria.
Senator Jaffer: The way I understand it, what they are being assessed for is if they were returned, would they further suffer persecution, torture or death? That is what they are being assessed for; right?
Mr. Graham: It is the same assessment criteria as under the IRB, which also includes persecution under the Geneva Convention. If you look at section 112 of the, it sets out who can apply. The criteria are identical. They are looking at exactly the same thing. It is not just the convention against torture, except those who are serious criminals, or people who are members of organized crime, or terrorists et cetera. Otherwise, the information you have been given is incorrect.
Senator Jaffer: I have been out of the process for a while, so perhaps I am mistaken. When I was involved with it, we were showing the board member what had happened to those people while they were in the country, not what would happen to them in the future. The criteria are different, are they not?
Mr. Graham: No, the criteria are the same. The only difference is that at the PRRA, the person is allowed to bring new evidence. It is not an appeal; it is actually a whole rehearing. New evidence has come along, and they can bring that before the PRRA officer for a decision.
I know the PRRA is often criticized for having a low acceptance rate. I do not believe that is a criticism of the PRRA. It states that the board is making a good decision. When we look at it a second time by another organization, we are finding that the results of the board tend to stand.
Senator Jaffer: This is not a hearing. This is a paper; right?
Mr. Graham: Just like the refugee appeal board will be. The refugee appeal board will not be a hearing; it will be a paper review.
Senator Jaffer: This is not like the first one.
Mr. Graham: Except that at the PRRA, they can have hearings. If there is a credibility issue, they will invite the person in to speak to them, so the person has a right to answer any credibility issues.
Senator Jaffer: Do you know what percentage of people is invited?
Mr. Graham: I do not have that information.
Senator Jaffer: Can you provide that to us?
Mr. Graham: Yes.
Senator Jaffer: The humanitarian and compassionate option has nothing to do with what had happened to them in their country. Basically, it is a bigger process. Will they integrate well into our country? Do they have jobs? Have they settled here? It is a bigger process than the earlier one; right?
Mr. Graham: Yes, it is bigger. It includes risk. People who make humanitarian and compassionate claims can also include in that — and most refugee claimants do — the possibility that they may be tortured or mistreated back home. It includes risk in that larger assessment. The officer is making a decision over a number of issues.
Senator Jaffer: This is something a bit different from what would have been heard. It is not really an appeal of what was heard by the IRB.
Mr. Graham: No, it is not an appeal, but it is another system that often looks at the same information.
Senator Jaffer: As well as additional information?
Mr. Graham: Yes.
Senator Jaffer: You heard Senator Goldstein speak today about the Federal Court review not looking at the merit so much as the form of the appeal. Do you agree with what he was saying?
Mr. Graham: No, because in the act itself, it is laid out what sections they will be looking at. Under Bill C-280, they will be looking at errors of law and fact. They are very similar.
Section 110 of the Immigration and Refugee Protection Act says:
A person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection, or a decision of the Refugee Protection Division rejecting an application by the Minister for a determination that refugee protection has ceased or an application by the Minister to vacate a decision to allow a claim for refugee protection.
It is the same as what the Federal Court Act says.
Senator Jaffer: That is the Federal Court Act. If I understood Senator Goldstein, he said that the refugee appeal division would look at the whole merit of the case and the federal court does not do that.
Mr. Graham: That is not what section 110, which is being brought into force by this bill, says. It says just ``. . . questions of law, of fact or of mixed law and fact. . . .'' It makes no mention of anything beyond that.
Senator Jaffer: That is why this is yet another process. It is not like a repetition of a process, the refugee appeal division. It would be looking at the merit of the case rather than just the form of the case, as the Federal Court review does.
Mr. Graham: I am suggesting that the Federal Court review and section 110 are very similar. There is no difference in what they are looking at. They are looking at the record; they cannot look at new information.
Senator Jaffer: They are looking at the record, exactly.
I have a bigger concern, which is that when Parliament passed the legislation in 2001, it did it on the basis that Peter Schowler gave, I believe, an undertaking. I know and you know that before when there was one member hearing a matter, you needed the consent of the claimant before one member could hear the case. Since this legislation, one member can hear the case. However, I believe there was an undertaking in the legislation itself that said that if there were an error — and nothing is perfect — that they had a right to go to the refugee appeal division to hear the case on the merit. One part was implemented and the other was not. Is that correct?
Mr. Graham: Yes, they did reduce it from a two-member hearing down to one.
Senator Jaffer: That is what this legislation did.
Mr. Graham: That is what the legislation did that came into force in 2002. I will point out, however, that before that time, the people making their claims before the board had a choice. They could go with two members or they could go with one.
In 1994-95, approximately 96 per cent were going with two members. By 2002, when the legislation ended, the percentage at the board was approximately 42 per cent. In other words, less than 50 per cent of claimants were actually using the two members. They wanted the faster service they were getting with one member.
According to the IRB, the way the system was set up was that with two members, if either one said the person was a refugee, that person was given refugee status. If there was a split decision, the person was given refugee status. In fact, less than 1 per cent of all cases that were heard by two members were split decisions. For the other 99-some per cent, the members agreed so there were no split decisions. The effect of reducing it from two members to one was minimal.
Senator Jaffer: I do not understand your logic.
Mr. Graham: Less than 1 per cent of the cases —
Senator Jaffer: I hear what you are saying but that just means that for that 1 per cent, 2 per cent, or 3 per cent, or whatever the percentage, people did not agree with the decision, so there was a safeguard.
Mr. Graham: Yes, for those less than 1 per cent.
Senator Jaffer: It does not matter — if it saved 1 per cent, it is better than not saving those lives.
I would like to ask a question of Ms. Kramer. I come from British Columbia and I believe that the CBSA there does a very good job. However, their credibility has suffered lately with one of the decisions where I believe they have been basically been made impotent. They have not been able to carry out their job. They have gone to the place to get this person removed and they have not been able to do it.
I actually feel sorry for those officers, who have a defined job description, but are unable to do their jobs because the community feels the claimant has not been properly heard. Do you not think that if the refugee appeal division was in place, your officers would be able to do a better job?
Ms. Kramer: Obviously, I cannot talk about the specifics of a case. Thank you for those nice compliments; the officers in the field do work very hard.
Sometimes, with the ability to remove someone, there is no need to rush it; it is better to take your time and do it right so that there are no criticisms. Where our priority comes into place is if the person poses a threat to national security, is involved in organized crime, crimes against humanity or criminals, we react fast.
As far as implementing a refugee appeal division, there are currently a number of mechanisms and avenues available for people to appeal such decisions. In addition, there is the pre-removal risk assessment and the person can also apply for permanent residence in Canada, based on humanitarian and compassionate grounds, to ensure that all avenues possible are there and to ensure that good decisions are made.
Senator Jaffer: As you know, I asked questions concerning the humanitarian and compassionate grounds and the pre-removal risk assessment — but those are not really appealed on the merit, as would be done by the refugee appeal division.
Ms. Kramer: I defer to my colleague from CIC because they are responsible for those two processes.
Ms. Lyon: Our answer is on the record in that we believe they would provide similar kinds of recourses.
Senator Goldstein: I will try to be fast, Madam Chair. In February 2002, the Inter-American Commission on Human Rights said:
Where the facts of an individual situation are in dispute, the effective procedural framework should provide for their review. Given that even the best decision makers may err in passing judgment and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection.
The United Nations High Commission for Refugees said:
UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process. It allows errors to be corrected and can also help to ensure consistency in decision making. Canada, Italy and Portugal are the only industrialized countries which do not allow rejected asylum seekers the possibility to have first instance decisions reviewed on points of fact as well as points of law.
Do we agree with each other if I were to say to you that appealing on the basis of humanitarian grounds is not an appeal procedure?
Ms. Lyon: That is correct.
Senator Goldstein: Would you agree that the pre-removal risk assessment procedure is not an appeal procedure?
Ms. Lyon: I would say that the PRRA offers the same sort of consideration of the facts as would be proposed in the RAD. Whether it is formally called an appeal or not, it is reviewing similar issues in a similar context.
Senator Goldstein: Does the claimant have the right to appear before a tribunal of any kind to plead his or her case with respect to pre-removal risk assessment?
Ms. Lyon: As my colleague pointed out, there are those opportunities if issues of credibility arise, which I would contrast with the RAD, where there is no such hearing.
Senator Goldstein: Is it not true to say that availability is there only if credibility issues arise?
Mr. Graham: Yes, that is the case.
Senator Goldstein: Then we will agree that is not an appeal procedure, right?
Ms. Lyon: As I said, I think if they are reviewing the same sort of facts and circumstances, whether or not it is labelled an appeal, it does provide for recourse for the claimant.
Mr. Graham: Keep in mind that the RAD does not provide that the person appear before them. It is only a paper review; there is no oral hearing with the RAD.
Senator Goldstein: No, but it would permit lawyers to appear.
Mr. Graham: No; it is a paper hearing — no appearances before the committee.
Senator Goldstein: I am not sure that is the case, but if you tell me it is so, then it must be so.
Mr. Graham: I suggest you ask the IRB also.
Senator Goldstein: Would you agree that the rule 29 recourse to the Federal Court is not an appeal procedure, but a revision procedure? Is either of you a lawyer, by the way?
Mr. Graham: No, but I know it is a review.
Senator Goldstein: It is a review, not appeal, right?
Mr. Graham: Right.
Senator Goldstein: De facto, there is no appeal process available to refused claimants, right?
Ms. Lyon: The issue is really the opportunities for the failed refugee claimant to make his or her case and have the facts considered. An objective review of the Canadian system would demonstrate that there are many opportunities along the way for precisely that to take place, including up to the Federal Court at every decision point and with potential recourse to the Federal Court of Appeal should systemic issues be raised.
Senator Goldstein: You said in your earlier submission that the Federal Court process is ``practically'' the same as an appeal. You did not say that it is the same as an appeal; you said ``practically.''
Ms. Lyon: It is not the same as an appeal. It is a separate body.
Senator Goldstein: Ms. Kramer, you said that the process is ``essentially'' the same. ``Essentially'' does not mean completely the same, does it, otherwise you would have said ``completely the same''?
Ms. Kramer: That is correct, but it is another avenue for recourse.
Senator Goldstein: There are lots of avenues.
Let us talk about how many refugee claimants succeed in these avenues. First, what percentage applies for a pre- removal risk assessment?
Mr. Graham: I do not know the percentage, but it is quite high, around 70 per cent.
Senator Goldstein: How many succeed?
Mr. Graham: Approximately 2 per cent or 3 per cent succeed.
Senator Goldstein: What percentage applies for the process before the Federal Court and what percentage succeeds?
Ms. Lyon: About 76 per cent apply and about 15 per cent are granted leave. Of that, about 2 per cent of the cases are overturned and sent back to the IRB.
Senator Goldstein: What percentage is given refugee status based on humanitarian considerations?
The Chair: If you can find it quickly, we will wait. Otherwise, you can provide it in written form.
Senator Goldstein: Perhaps, in the interests of time, you could supply that answer later.
It would therefore be truthful to say that 6 per cent of the refugee claimants would have been granted refugee status to start with, but the adjudicator misled himself or herself.
Mr. Graham: First, I can answer your question in numbers. Fifteen per cent of failed refugee claimants apply for permanent resident status, and approximately 45 per cent of those are approved for humanitarian and compassionate reasons, including risk.
Senator Goldstein: Setting aside for the moment the application for permanent status, which is another issue, since the Federal Court is sending back 2 per cent, obviously concluding that the initial adjudication was incorrect, and since pre-removal assessments are granted in 2 per cent, you are talking about 4 in 100 of refugee claimants who would not have had their legitimate claims, as it turns out, agreed to in the first instance.
Mr. Graham: I do not think we would agree with that because, first, when the court sends it back, it is saying there was an error made in the process. The court is not telling the adjudicator how to make the second decision. The person may still not be found.
In the case of the PRRA, we allow people to bring forward new evidence. It is often the new evidence that will sway them to make a different decision. For example, the new evidence may include something that happened last week as opposed to something that happened when they were there before. The new evidence criteria are important in PRRA decisions.
Senator Goldstein: Let us not talk about figures for the moment. The three of you and I will agree that there are some claimants who do not receive justice in the first instance. Let us forget about the percentage. I think it is obvious that that is a rhetorical question.
Do you have any studies about the cost of implementation of this appeal tribunal, and do you have any studies with respect to your assertion that it would cause increased delays, or is it just your feeling and just empirical evidence?
Ms. Lyon: In terms of the cost figures, we have some estimates of what would be required up front to get the system running. Those are estimated to be in the tens of millions, and much of that will depend on what my colleague referred to in terms of the transition and questions as to whether this system would apply prospectively or retroactively and whatever ensuing litigation will result.
With respect to your question about the impact this would have on the system as a whole, perhaps our colleagues from the IRB can elaborate more in terms of that five-month period we talked about. Mathematically, if you assume that everyone will avail themselves of judicial review subsequent to RAD, which adds another year to the process, you see how the numbers start to become quite impressive and the delays can be likewise constraining.
Senator Goldstein: Some of us do not see this as a function of delays; some of us see this as a function of human rights.
Ms. Lyon: We do not agree with your previous point in terms of justice denied, because the opportunity to have subsequent reviews at various stages could well be, as my colleague points out, to take account of new evidence that may have come to light in the intervening period. There are a variety of issues that could be looked at — errors of fact, errors of law, a mixed bag, or excess of jurisdiction.
I would not say necessarily that the rate of 2 per cent, both at the PRRA and at the Federal Court, necessarily is evidence that the system is flawed, but that is just what the numbers yield in terms of those successful rates.
Mr. Graham: We expect it to cost the provinces, which do not have a lot of say in this, approximately $21 million a year with that five-month period added on in terms of social assistance costs.
Senator Poy: Thank you very much for your presentations. Going back to your original presentations, I have a sense that you are worried about the backlog and the increasing numbers.
Ms. Lyon, in your presentation you estimated that there will be 40,000 refugees in 2008. When we talk about refugees we are talking about people and not numbers. What really bothers me is that we want to lower the number, therefore we will not put RAD in.
In your presentation you said that if we add RAD, we will see large and ever-increasing inflows of claimants from countries that are not generally refugee producing. That would mean that many are coming to Canada to benefit from what the system has to offer without going through the normal immigration processes.
Can you explain that, please?
Ms. Lyon: In the last several years, we have seen numbers of refugees from countries such as Mexico increase considerably. IRB reviews show success rates or positive decisions in that respect of only about 10 per cent.
Mr. Graham: Last year our highest number of refugee claimants came from Mexico. There were approximately 7,000 of them. This year we are seeing an increase of Mexicans coming, which will probably take us to 10,000 Mexicans this year.
Ms. Lyon: That is what I was referring to.
Senator Poy: Would RAD make it slower? You were saying that it would add another five months. It is my understanding that when refugees are in this country they are allowed to work. It really does not cost the government money, except for the legal process. Is that right?
Ms. Lyon: The provinces provide social assistance and the federal government incurs costs for health services. As my colleague mentioned, some of the $21 million we referred to would accrue at the provincial jurisdiction.
Senator Poy: You are saying they will stay in this country five more months and those who will be refused will be refused anyway. Is that correct?
Ms. Lyon: It is probably a minimum of five months if you include some of the other processes of which could avail themselves.
Senator Poy: Are you saying you are worried about the cost to the different levels of government?
Ms. Lyon: It is a combination of factors. Our primary concern is that the system as it stands provides significant opportunities for potential refugees to have their cases heard by competent authorities. If they are not happy with those decisions, there are a number of, not appeal points, but other decision points that can examine the same factors. We think the system is very fair and generous. We have a good international reputation in terms of how the system functions.
The first point would be the necessity of something additional when you already have ample opportunities. There is a cost consideration that we need to take into account and there is the factor of constraining the entire system which is not in the interests of any of the refugees. We are concerned about the people as well.
Our concern is the additional layer that would be imposed will not give them any additional rights. Rather, it could have a negative impact in the overall smooth and efficient functioning of a system that has already garnered significant international praise.
Senator Poy: Ms. Kramer, you mentioned that it is difficult to remove refugee claimants after they have been here for a length of time. Can you explain that please?
Ms. Kramer: The longer they in Canada, the more likely they are to integrate into society and the more likely they are to go into hiding. It is more difficult to find them. Their travel documents expire. We may have to apply for new travel documents which sometimes can be problematic. Our experience is that the longer they stay in Canada, the more difficult it is to remove them.
Senator Poy: You mentioned three years and then two years. Therefore, many of them would stay approximately five years in the country. Is that right?
Ms. Kramer: That is correct.
Senator Poy: If someone is going to disappear, they can disappear within two weeks.
Ms. Kramer: Normally, people are compliant until it is time to remove them. Then, there is a high absconding rate of about 90 per cent.
Senator Poy: When the claim is rejected and someone has to be removed, if that person cannot go back to his or her country of origin, what does the IRB do? Do you have to find another country to accept that person?
Ms. Kramer: The IRB is not responsible for removing people; the Canada Border Services Agency is responsible.
It depends on the situation. We can sometimes look for the country where they were born, the country of last permanent residence, the country of citizenship or another alternative.
Senator Poy: If none of these countries accept them, then what happens? Do they stay here?
Ms. Kramer: Normally, if someone has an enforceable removal order, by law, we must remove that person. Therefore, we would continue to find a country. However, in the meantime, the person would not have any status in Canada.
Senator Poy: What does that mean?
Ms. Kramer: The person would not be a permanent resident.
Senator Poy: Would he or she be able to work?
Mr. Graham: Once the removal order becomes active, the person is under a deportation order. At that point, he or she is not allowed to work any more unless the minister makes a decision otherwise.
Ms. Kramer: That would be a very rare case. I am not even aware of one.
The Chair: Perhaps after this hearing, I can share some cases with the senator. Stateless persons are an issue. I do not believe it is relevant to this act and this amendment. There are stateless persons throughout the world. It is not only a Canadian problem. It is a problem we face when there is not a receiving country and they find themselves on our soil or someone else's. It is something that the United Nations has signalled as an issue. That is a debate for another time.
Senator Oliver: Ms. Kramer, you said my question is not about the act but about a proposal. You spoke about a proposal in second reading in the Senate and that would delay implementation for 180 days from the date of Royal Assent. You indicated that would be inadequate, but you did not say what would be adequate.
Ms. Kramer: It is difficult to stay. However, it would probably take about a year or more to implement given the required time to recruit and train hearings officers to carry out that function.
Senator Oliver: You also said in response to Senator Poy that there is a high absconding rate up to 90 per cent. What is that in terms of numbers of people?
Ms. Kramer: We remove between 10,000 and 12,000 persons per year. Therefore, the number is in the thousands.
Senator Oliver: How many thousands?
Ms. Kramer: I could not tell you exactly, but it is a significant number.
Senator Oliver: Are the absconders in Canada?
Ms. Kramer: Yes.
Senator Oliver: Ms. Lyon, in his evidence both as a senator on the committee and as a presenter, Senator Goldstein referred to Canada's position and compared it with Italy and Portugal for not having a review mechanism.
In your evidence, you gave a detailed analysis of the pre-removal risk assessment. You told us that that assessment allows new evidence to be introduced beyond that given at the IRB and that claimants have the right to remain in Canada during the proceedings. Do you know whether they have the same rights in Italy or Portugal?
Mr. Graham: Canada is the only country that has anything like a pre-removal risk assessment. Other countries do not have the same. We wanted to ensure it was in place so we would not be removing people whose situation had changed. No other country has that assessment.
The Chair: Mr. Graham, if section 110 of the previous bill is put into force by Senator Goldstein's bill, it creates an appeal to refugee appeal division. However, the appeal is limited in my reading. It says:
110. (1) A person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division . . . .
It goes on, but and I will not read the rest of it. In subsection 3 of section 110, it states:
(3) The Refugee Appeal Division shall proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept written submissions from the Minister, the person who is subject of the appeal, and a representative or agent of the United Nations High Commissioner for Refugees, and any other person described in the rules of the Board.
I see section 110 as a limited appeal that is not a full appeal, as we might know it in a criminal court. It is permissive if there are to be written presentations by any parties. There is no hearing. It is on paper and is based on the record. You can look at the law; you can look at facts or mixed law and facts, but based on the record.
Your point was that with the other process you have new evidence, et cetera. However, you made a statement that bothered me. You said that the present system of appeal to the Federal Court is the same, and I would argue from my reading of it that it is not the same. It is not the same because an appeal to the Federal Court then gets you to the grounds upon which you can appeal in the Federal Court, which is more than law. It talks about failed to observe principles of natural justice, acted without jurisdiction, erred in law, erroneous findings of fact, acted or failed to act by reason of fraud or perjured evidence, or acted in any other way contrary to the law. In other words, I think there are six concepts that get you into the Federal Court. They are short of a full appeal on fact, but they are more than just on law. I think we have a generous Federal Court system on the law there. However, it would seem to me the refugee appeal division would add that re-look of facts but only on the record.
Mr. Graham: That is correct.
The Chair: There is that difference between what is going on in the Federal Court and what would be if the division occurred.
Mr. Graham: That is absolutely correct.
The Chair: I am getting it right; it is not a full appeal. It is a very limited appeal, but it would be one more ground than in the Federal Court appeal.
Mr. Graham: One more ground in the sense that, if one looks at the six items being looked at within the Federal Court, they are basically the law and the fact of the cases put forward. They are looking at the record. They look at the record and make a decision on it.
The Chair: In the appeal division, you also look at the record, unless that appeal division determined to get written submissions, so it is not mandatory. It says ``may.''
Mr. Graham: No, allowing the two sides to put in written submissions is the same as at the Federal Court; you can make a submission. In other words, they look at the record and then the lawyers make arguments. They cannot bring forward new evidence.
The Chair: No, but if you look at the proposed refugee appeal, it says proceed without a hearing, which is not the Federal Court case. There are more discretions in the Federal Court Act as I understand it. The refugee appeal division does not have the discretion to hold a hearing; it shall proceed without a hearing. Where it has discretion is to accept written submissions or not, and that would be at the discretion of the refugee appeal division.
Mr. Graham: Those written submissions are the same types of submissions put before the Federal Court. They are exactly the same.
The Chair: Fair enough. They might be.
Mr. Graham: What they will not be is new evidence because they have to proceed on the record and the submissions.
The Chair: I understand that point. My point was really to make a clarification that we are on the same side of this. The refugee appeal division could structure itself or could give the discretion to the person in the appeal division to determine whether he or she would accept because it is discretionary. It does not say ``shall'' but says ``may.''
Mr. Graham: Yes, and you may want to question the IRB members on how they see that happening.
The Chair: Thank you for coming and giving us your submissions and concerns with respect to this bill and the functioning of the appeal processes and giving us the information on how the existing avenues are open to refugee claimants.
We now have before us three representatives from the Immigration and Refugee Board of Canada. We will hear from Mr. Jean Bélanger, Mr. Geoff Zerr and Mr. François Guilbault.
Geoff Zerr, Director, Policy and Procedures, Immigration and Refugee Board of Canada: Good evening. I would like to thank the committee for inviting officials from the IRB to speak on Bill C-280. I am Geoff Zerr. I am director of policy and procedures at the IRB.
I am joined today by Mr. Jean Bélanger, Senior Financial Officer of the Board and the Director General of Corporate Planning and Services Branch; as well as Mr. François Guilbault, Senior General Counsel of the IRB.
[Translation]
Our main purpose this evening will be to provide the committee with an overview of the proposed refugee appeal division, what it is, how it would work, and the practical implications for the IRB of implementing it, in terms of costs, processing times, recruitment and other challenges.
[English]
One thing I would like to make clear before I begin is that as an independent administrative tribunal the IRB does not engage in, nor does it seek to make pronouncements on, the broader policy questions related to Bill C-280. The IRB will implement the RAD if that is the will of Parliament.
As you know, one of the IRB's functions is to make determinations on claims for refugee protection. This work is carried out by the Refugee Protection Division, or RPB, the largest of the IRB's three divisions.
[Translation]
The refugee appeal division would add a fourth division to the structure of the IRB, and provide for an appeal of decisions by the Refugee Protection Division. This means that any claimant whose refugee claim was rejected, or the minister, in a case where status is granted, would have a right of appeal.
[English]
The RAD would serve two functions: to ensure justice in individual cases, and promote consistency of decision- making within the RPD by providing guidance and issuing binding precedence. As the RAD's workload would be entirely dependent on the work volume of the Refugee Protection Division, the number of appeals heard by the RAD would necessarily fluctuate. Currently, RPD intake is about 36,000 claims a year.
Equally important to understand is what the RAD would and would not do. The RAD exists to hear an appeal of a decision of the RPD to allow or reject a protection claim on the grounds of law, mixed fact and law, and fact, as you have heard this evening. The RAD appeal would be a paper process only. It would not conduct any oral hearings or receive testimony from individuals. Appeals to the RAD would be decided purely on the facts of the case as they existed at the time the RPD made the decision. The RAD would not consider any new evidence. Finally, the RAD would only consider whether the person meets the legal definition of a refugee or protected person. The appeal would not include a pre-removal risk assessment, nor would it adjudicate on issues such as humanitarian and compassionate grounds for remaining in Canada.
After considering the appeal, the RAD could do one of three things: first, uphold the RPD decision; second, set it aside and substitute its own decision; or, finally, set it aside and send it back to the RPD to be reheard.
As you know, should the RAD uphold an RPD decision, a failed claimant would still have access to judicial review at the Federal Court, with leave of that court. Claimants would also continue to have other recourse options, including a pre-removal risk assessment, and they could request a stay in Canada on humanitarian and compassionate grounds. Both of these options allow for review by the Federal Court, with leave, and both are decisions of CIC.
In terms of processing times, to have a fair process, natural justice requires that the person appealing be given time to review the original decision and prepare their written arguments. In our view, this means that someone appealing an RPD decision would be given about 45 days from the original decision to review the file, prepare their submissions and file their appeal.
It would take the RAD a further three to three and a half months to complete the case. We estimate that on average the appeal process would add an additional five months to the board's overall processing time.
I would now like to turn to the critical issues regarding implementation and ongoing operations of the RAD, specifically the issue of caseloads and costs.
The successful implementation of an appeal division would be affected by the size of its initial caseload. Critical to this implementation will be a clear transitional provision and one year to become operational. This will enable the RAD to fulfil its mandate in a timely fashion. Also, because the RAD cannot look at new evidence, it is restricted to the facts at the time of the initial RPD hearing, the longer the wait from RPD decision to consideration by the RAD, the more likely that a change of circumstances will have occurred in the individual's country of alleged persecution, which will have to be considered in subsequent proceedings.
RAD will require sufficient funding to operate successfully. RAD will require one-time start-up costs as well as ongoing operating costs. These may need to be revisited in the course of implementation, but the board has estimated that the one-time start-up costs to implement the RAD will be in the range of $8.2 million.
[Translation]
This would include costs for the recruitment and training of public service personnel and Governor-in-Council appointed decision-makers, the updating and development of rules and procedures, the development and delivery of training, the development of an electronic case management system, staff relocation, equipment and accommodations.
[English]
Ongoing cost projections include both fixed costs and demand-driven costs. Demand-driven costs are those that derive from the overall volume of appeals the RAD would receive every year. This in turn is influenced by how many cases the RPD finalizes every year. Using the current caseload projected for the RPD, we have calculated that ongoing costs for the RAD will be $17 million to $24 million a year. Mr. Bélanger will be able to provide you with additional information on our cost analysis if you wish.
The costs I have identified are those pertaining only to the IRB. As you have heard from CIC and CBSA, there are additional costs for other government organizations. The size and scope of the requirements to successfully implement an appeals process is a very large undertaking. The requirements involve recruitment of human resources, drafting division rules, training, system development and securing office lease and accommodation. All of these requirements will take time. Also, many of the activities required to set up a RAD cannot be run concurrently. For example, training cannot be delivered until procedures and manuals are written and personnel are in place. The board estimates that it would take a minimum of one year from the time legislation is passed for RAD to become operational.
To recap some of the main points I have raised, it is important to remember that the caseload of the RAD would be directly linked to how many cases the RPD finalizes every year. Also, it needs to be clearly understood that the RAD is a paper process, decided purely on the facts of the case as they existed at the time the RPD made the decision. A sound appeal body will require sufficient funding and human resources to effectively implement and meet the objectives of the RAD. Finally, transitional provisions will bring greater clarity to who is eligible to appeal to the RAD and to give the board time to become operational.
I hope this gives you a good overview of the RAD and the issues it presents for the IRB in terms of its implementation.
Senator Di Nino: You commented that the RAD is a paper process decided purely on the facts of the case, as they existed at the time. However, in your statement, and please clarify this for me, you said:
. . . . because the RAD cannot look at new evidence, it is restricted to the facts at the time of the initial RPD hearing, the longer the wait from RPD decision to consideration by the RAD, the more likely that a change of circumstances will have occurred in the individual's country of alleged persecution, which will have to be considered in subsequent proceedings.
Does that mean that new evidence can be introduced?
Mr. Zerr: The RAD can only deal with information that was in the file at the time the RPD made its decision. It will not be able to consider any new evidence.
Senator Di Nino: What do you mean by that statement then, Mr. Zerr? I do not understand it. I am not trying to make it difficult for you.
Senator Oliver: I do not understand it, either. It is a very good question.
Mr. Zerr: If there is a change in circumstances for an individual who files an appeal to the RAD after a significant period of time has elapsed, the end result is that he or she is not getting the decision he or she probably deserves.
I will use the Iraq war as an example. If someone filed an appeal today based on a decision made in 2002, we would not be able to consider the Iraq war in a RAD situation, meaning that we would have to consider the situation in Iraq at the time the decision was made in 2002. For that reason, the RAD decision would be based only on a paper review of that 2002 decision, and any other evidence that needed to be introduced would have to be introduced through the PRRA mechanism, or maybe a humanitarian and compassionate mechanism to CIC, but it could not be done within the Refugee Appeal Division as it stands.
Senator Di Nino: To be fair and balanced, they would have those opportunities, if the RAD decision was negative, to go through the other appeal processes, or the other processes that would review their information?
Mr. Zerr: They would have the opportunity to apply for a pre-removal risk assessment or to apply for a humanitarian and compassionate decision. What they chose to introduce at that point would, of course, be left to them.
Senator Di Nino: I understand that now. Thank you kindly.
A number of past and current ministers of citizenship and immigration have expressed the opinion that the introduction of the RAD would truly not assist or result in serving the needs of the potential applicants any more than the system now does. They say that the system provides the appropriate opportunities for the review of the cases that these failed applicants have presented.
Understanding that there are three different processes available to a failed applicant, and with your experience and knowledge, would you say that the passage of Bill C-280 would result in any meaningful changes to the decisions that have been made without the RAD? Is that clear? I am not trying to mislead you.
Mr. Zerr: Unfortunately I cannot answer your question, simply because the board has no position on whether the RAD is a good idea. The board can only implement the RAD if it is passed into law.
Senator Di Nino: That is fair enough.
The people who know best how the system works are the Immigration and Refugee Board. Do you believe that the current process is fair, just and balanced so that anyone coming before it has a fair opportunity to present his or her case in a way that should satisfy the needs of the applicants?
Mr. Zerr: I certainly would not sit here and judge our process. I can tell you that we are held up by the United Nations High Commissioner for Refugees as a model system. We spend a great deal of energy and resources on recruiting and training our decision makers, and we focus our efforts on ensuring the first level decision is of the best quality it can be. That is all I can speak to on that issue.
Senator Di Nino: I will leave it for now.
Senator Jaffer: Please to turn to page 4 of your presentation. I would like a clarification. In paragraph 1 you say that a ``. . . . person meets the legal definition of refugee or protected person.'' Gender guidelines would also be applied here, would they not?
François Guilbault, Acting Senior General Counsel, Immigration and Refugee Board of Canada: Gender guidelines have to be applied by the members in any case that raises violence against women or gender-based persecution. It is a complement to the refugee definition.
Senator Jaffer: My concern is that, as we know, the refugee definition does not bring in gender, but we have gender guidelines. Those would be looked at in the RAD process, would they not?
Mr. Guilbault: Yes. There is no reason gender guidelines would not be applicable to the RAD process.
Senator Jaffer: One thing that has arisen is the status of claims that are awaiting decision at the IRB. Can you explain why the backlog has occurred?
Mr. Zerr: I could spend a considerable amount of time speaking to the existing RPD backlog. As you know, in 2003 the board had a significant backlog and spent some time addressing it. For various reasons, that backlog has started to increase again, and of course that backlog represents any future work for any implementation of the RAD.
I know that I am not answering your question specifically but, frankly, we are here to discuss the refugee appeal division and its implementation, and I do not want to distract senators from that issue.
Senator Jaffer: Your colleagues have raised the issue of the backlog many times.
Mr. Zerr: The backlog has arisen again because of a significant increase of the number of refusals we have received over the last few years, the fact we are resourced for a certain number of intake, and the fact that our current intake exceeds what we are resourced for.
Senator Jaffer: What is the total number of board members the IRB should have?
Mr. Zerr: We are resourced for approximately 127 GIC decision makers.
Senator Jaffer: How many do you have?
Jean Bélanger, Director General, Corporate Planning and Services Branch, Immigration and Refugee Board of Canada: The average over the last year is about 36 per cent vacancy.
Senator Jaffer: My last question is about the estimates. Earlier your colleagues talked about millions of dollars. House of Commons transcripts show that start-up costs relating to implementation will be $6 million, that IT-related services will cost $2 million, and that operating costs will be between $6 million and $8 million. Are those the most up- to-date cost assessments?
Mr. Bélanger: Yes, they are. The start-up cost is about the same as originally planned, which is about $8 million. The ongoing cost of operation has changed significantly for five reasons. First, the original estimate was based on different workload assumptions. Currently our workload assumptions are much higher than the original estimate.
Second, in the last 12 months, we have done more detailed analysis of the case management support that will be required to support the operation of a RAD. We have estimated that it will increase the cost of case management significantly.
Third, we have now put into the cost the indirect costs of RAD for cases back to the RPD. Certain cases that go through RAD will now come back to the RPD and we have put that into our cost estimates, which was not the case before. We believe there will be slightly increased costs for fit-up on accommodation, because of the market of 2002 versus 2008. That is the reason we have higher costs.
In addition, we are now putting costs on a range basis because the workload fluctuates. We are a volume-driven organization and the workload goes up and down depending on how many cases go to RPD. Rather than having specific costs, we are now talking about a range of costs to indicate the fluctuation of our workload.
Senator Goldstein: Thank you, gentlemen, for your testimony and for your professionalism in avoiding policy issues and being descriptive and analytical. I am sure that is very difficult because you all have your personal views, which we respect, and we respect that you chose not to express them. That is perfectly professional.
Mr. Bélanger, you anticipate an increased workload of the IRB because, if the RAD were implemented, there would be cases, which would go back to the IRB. Would that not imply to a layman like me that for whatever reason, the initial decision would have been incorrect?
Mr. Bélanger: When we are asked to do cost estimates, we have to be on the safe side to indicate potential costs. The cost of that could be zero, but it could also appear as a certain amount. As an institution, we have to protect ourselves to ensure that the cost estimates are as prudent as possible. Many of those estimates could in fact go up and down because it is still unknown territory.
Senator Goldstein: That is perfectly fair. I am pleased you do that because it makes our task easier.
You, however, had a hypothesis as to how many cases would go back because of the RAD. To a layman, it would appear that a quantity of cases are incorrectly decided in the first instance and would require a decision de novo. What did you hypothesize as the number of cases going back as a result of the institution of the RAD?
Mr. Bélanger: For the purposes of the estimates, we went the safe route by assuming a rate of 15 per cent. It could very well have been 1 per cent, 2 per cent or 5 per cent, we do not know. For the purposes of cost estimates, we wanted to indicate a safe estimate.
Senator Goldstein: The cost analysis was $8 million for implementation, and it has varied from time to time between $8 million per year to $12 million and now $17 million to $24 million is a range that you have submitted. We are conscious of that variation.
Are you conscious of the fact that, by way of comparison, the Canadian government announced in Budget 2008 that it had allocated $25 million for the Vancouver 2010 Olympic torch relay, just the relay, in addition to the $31 million already budgeted by the Vancouver Organizing Committee?
In other words, the government correctly felt comfortable allocating $25 million for the torch relay. In that context, an amount of $16 million to $24 million does not appear to be a tremendous amount of money, does it?
Mr. Bélanger: I cannot compare the operating costs. The only point I am raising is to indicate to this committee that the cost of operating a RAD will be in that ballpark figure. I am not here to say if that figure is high or low.
Senator Goldstein: You are not judging it.
Mr. Bélanger: No, I am not judging the value of it. I am just stating the facts.
Senator Goldstein: I admire that, Mr. Bélanger. Mr. Zerr, we have, as I understand it, 58 vacancies. I think that is the 36 per cent figure you mentioned. Am I wrong? That is the 36 per cent to which you were referring?
Mr. Zerr: We have approximately 58 vacancies, yes.
Senator Goldstein: Would it be fair to say that if all of those vacancies were filled, the backlog would go down significantly?
Mr. Zerr: To clarify, the backlog in the RPD would go down significantly?
Senator Goldstein: Yes.
Mr. Zerr: If we had a full member complement, of course we would be able to finalize more decisions in a given year.
Senator Goldstein: What quantity of the aggregate backlog of the board consists of refugee claimant people as opposed to a variety of other claimants?
Mr. Zerr: Our backlog in the Refugee Protection Division represents 100 per cent refugee claimants. Some of those are principal claimants and some are associated claimants, such as a wife and children.
Senator Goldstein: That is fine, but what percentage do the refugee claimants, including ancillary claimants, represent in terms of the total backlog?
Mr. Zerr: Are you referring to CIC's backlog, the number that was thrown out earlier?
Senator Goldstein: Yes.
Mr. Zerr: We are not considered to be part of that backlog. Our backlog at the Refugee Protection Division stands at approximately 42,000 to 43,000 right now.
Senator Goldstein: You have two other divisions.
Mr. Zerr: Correct. The Immigration Division has no backlog, and the Immigration Appeal Division, which RAD does not apply to, has 9,000 to 10,000 cases in backlog.
Senator Goldstein: Therefore, two-thirds of the aggregate backlog would be refugee claimants. We can all do the math.
Mr. Bélanger: If I may, I encourage you to consult our recent report to Parliament, which has just been tabled, the same as other organizations in the federal government. In that document, you will find very precise statistics over the last four to five years on our projection with respect to the inventories or backlog of the three divisions.
Senator Goldstein: Thank you very much. I have other questions, but out of respect for the Chair, I will not ask them.
Senator Poy: Senator Goldstein has asked a couple of my questions. When was the backlog the lowest for the IRB?
Mr. Zerr: I believe the IRB backlog hit its low point in 2005.
Senator Poy: At that time, were there two adjudicators hearing each case?
Mr. Zerr: No. There were single-member panels.
Senator Poy: Did changing from single-member panels to two members help to clear up the backlog?
Mr. Zerr: The board took a number of steps to clear its RPD backlog led by the chairperson's action plan. It was a concerted effort to re-examine our case management strategies in order to bring the backlog down to a manageable level. That was primarily how we were able to accomplish that goal.
Mr. Bélanger: If I may add, during that period of 2004 to 2006, the IRB had temporary additional resources available to deal with the backlog it had at that time for the RPD.
Senator Poy: Was the method simplified? Was that how they dealt with the backlog?
Mr. Zerr: The board examined all of its processes from the minute the file was referred right through to the final decision. We identified a number of areas to implement efficiency and to examine our processes. It was a complete evaluation of how we did our business, and we responded to the issues we identified accordingly.
Senator Poy: However, the same policy is still in place at the moment?
Mr. Zerr: That is correct.
Senator Poy: You are still getting this huge backlog?
Mr. Zerr: Yes, primarily because of the increased intake and the capacity gap we have identified. However, the action plan implemented a number of cultural changes to our organization, which we incorporate today. If we were to be fully resourced, it would continue to be used by our decision makers.
Senator Oliver: When Senator Poy asked you to explain how you got rid of the backlog, you said that we then had ``temporary additional resources.'' What were they? Why do you not employ the same measures now to get rid of your backlog?
Mr. Bélanger: The temporary resources were obtained through a Treasury Board submission that justified the additional resources for a period of three years based on the inventory at the time.
Senator Oliver: Have you applied to the Treasury Board to do a similar thing?
Mr. Bélanger: No. The difference is, at the time there was a source of funding available to us to provide the extra money. Currently, that source of funding does not exist, so we need to discuss with central agencies about another potential source of funding to eliminate the backlog at RPD.
The context is a bit different now. When you obtain new funds from the Treasury Board, it has to come from a source. At that time, there was indeed a source. Now that source no longer exists.
Senator Oliver: What was that source?
Mr. Bélanger: It was the PSAF, the Public Safety and Anti-terrorism Fund. It dates back to 2002, I believe.
The Chair: I understand that there were changes made in the board that you would utilize once you restructured — I cannot remember in what year that occurred — in that you would have guidelines on decisions on certain policy issues. What had been the complaint was that there would be one decision that might be contrary to another decision on some facts or some situations, so you would have two people in virtually the same situations coming as refugees and they might be treated differently. As a result, there was to be some use of precedence or guidelines or a database of information from which the board could draw. Can you explain that a bit, or is it still sole discretion of each decision maker?
Mr. Zerr: I will defer that to my colleague, Mr. Guilbault. However, certainly every case is considered on its own merits. We look at a variety of policy instruments, where we can, to ensure as much consistency as possible, including chairpersons' guidelines or what we call persuasive decisions. These guidelines set out certain facts that decision makers with similar cases could consider in the deliberation of their own decisions.
Mr. Guilbault: Since IRPA, the chair has at his or her disposal two policy- instrument guidelines, which are making power and something called jurisprudential guide. These guidelines allows the chair to identify a decision that has more power than other decisions because as independent decision makers members of the board are not bound by their colleagues' decisions on a similar fact situation from the same country.
The chair has exercised that power, for instance, in the case of Costa Rica where he said that for these profiled claims I identified this decision that says people from Costa Rica who fear violence have protection available to them and I expect members to follow that decision. Therefore, members are expected to follow this jurisprudential guide unless they have reasons not to follow it and they have to explain why. This is a tool at the chairs disposal, which are still available to them in other situations.
Senator Goldstein: It is true, is it not, that notwithstanding the existence of your jurisprudence file and your guidelines for chairpersons there are inconsistent decisions rendered by different adjudicators? I think, for instance, of some adjudicators who take the position that persons coming from Israel can be considered refugees while others coming from Israel cannot be considered refugees. Is that correct?
Mr. Zerr: What you indicate is the very essence of our process and that is that every case must be considered independently, not only the IRB independent from government but each decision maker independent from his or her colleagues as well. Human nature says that if two people examine similar documentary evidence, or other evidence, they may reach different decisions.
Senator Goldstein: Now, an appeal tribunal, however, if it sets forth guidelines for the adjudicators who adjudicated the first instance, those adjudicators would find themselves bound by the appeal court principles, would they not?
Mr. Zerr: That is correct. The appeal would provide precedents.
Senator Goldstein: Thank you very much for your testimony. It was very useful.
The Chair: I would like to thank the witnesses for being patient with us and waiting to come on slightly later than they were scheduled. I thank you for your information and for the work that you do at the board.
The committee adjourned.