Proceedings of the Standing Senate Committee on
Human Rights
Issue 5 - Evidence, May 12, 2008
OTTAWA, Monday, May 12, 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 5:05 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, we are convened this afternoon to study Bill C-280. We have a panel comprised of three groups for our first hour. We have, from the Canadian Council for Refugees, Ms. Janet Dench; from KAIROS: Canadian Ecumenical Justice Initiatives, Mr. Alfredo Barahona; and from Amnesty International Canada, Ms. Gloria Nafziger and Ms. Naomi Kikoler.
Alfredo Barahona, Coordinator, Refugee and Migration Program, KAIROS: Canadian Ecumenical Justice Initiatives: Thank you on behalf of KAIROS: Canadian Ecumenical Justice Initiatives for the opportunity to participate in this important dialogue for the refugee community.
KAIROS is a partnership of 11 churches and church-related organizations. We work for human rights and social and economic justice in Canada and around the world. KAIROS promotes the rights of refugees and migrants in the context of the human rights of all peoples.
On behalf of KAIROS, I wish to express our strong disappointment that the Refugee Appeal Division, RAD, has not been implemented to date. Refugees' lives are as we speak in the hands of a single person since the reduction of the number of Immigration and Refugee Board of Canada members hearing our claims; they have gone from two members to one. The RAD was to balance this decision.
KAIROS believes that the implementation of the Refugee Appeal Division is an issue of fundamental justice for refugees. In 2002, the government promised to implement the Refugee Appeal Division that is part of the 2001 Immigration and Refugee Protection Act. Despite repeated promises, this appeal process has not been implemented.
Canadian churches and many other colleagues have been working tirelessly to hold their government accountable to this promise. The current government claims that it places priority on government accountability; yet a government that is accountable implements laws passed by a duly elected Parliament. Parliament voted for the RAD when the act was passed in 2001. How many more letters, meetings and presentations do we have to go through before we see the Refugee Appeal Division implemented?
Our deep concern and frustration is justified if you consider that almost six years have passed and successive governments have not complied with their own laws. Refugee advocates have been calling for the implementation of the Refugee Appeal Division ever since the Immigration and Refugee Protection Act came into effect.
The Refugee Appeal Division has been a long-standing concern of KAIROS and KAIROS member churches. I would like to give you an overview of what KAIROS and others have been doing. In 2003 and 2004, KAIROS members wrote numerous letters calling for the government to fulfill its promise. On Refugee Rights Day, April 4, 2005, two members of Parliament presented the first 10,000 signatures that KAIROS members had collected calling for the implementation of the Refugee Appeal Division. In the spring of 2006, KAIROS presented to the House of Commons over 24,000 signatures from concerned Canadians calling on the government to immediately implement the Refugee Appeal Division.
KAIROS remains concerned about the government's continued use of different reasons and excuses to postpone the implementation of an appeal process that has been part of Canadian law since 2002. Canada, as we know, has international obligations to refugees. As a signatory of the 1951 Convention relating to the Status of Refugees and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Canada has an obligation not to return refugees to a country where they will face persecution and torture.
Failure to implement the Refugee Appeal Division undermines our ability to live up to this obligation. Both the Inter-American Commission on Human Rights and the United Nations High Commissioner for Refugees have stated time and time again that a merit-based appeal process is fundamental to a just refugee determination system.
KAIROS would like to make the following recommendations, and we hope that you will listen. KAIROS urges you to pass this bill as quickly as possible and implement the Refugee Appeal Division without delay. It has already been five and a half years since the Immigration and Refugee Protection Act was passed. For those many years, as I said, the decision has been in the hands of one single person.
In a system that has not even been approved by Parliament, correcting this injustice is long overdue. Incorrect decisions at the refugee hearing that go uncorrected can lead to refugees being returned to persecution, torture and, as traumatic this may sound, even death. Contrary to popular opinion, there is currently no appeal on the merits to refugee claimants. The limited recourse that is available is not capable of correcting the many errors that can occur in a refugee determination process.
KAIROS strongly recommends that this bill should not be amended to delay further the implementation of the Refugee Appeal Division. Please remember that this bill simply calls for the implementation of legislation already studied and passed by the Senate. Delaying the implementation of the RAD any further could cost refugees' lives. It is time to implement it. I would like to repeat that the failure to implement the Refugee Appeal Division puts people in real danger.
I know you wanted me to be brief, so I thank you very much for listening and for your time.
The Chair: Thank you, Mr. Barahona.
Janet Dench, Executive Director, Canadian Council for Refugees: I am pleased to have the opportunity on behalf of the Canadian Council for Refugees to appear before you on the question of access for refugees to an appeal on the merits. We have been waiting a long time for this. In fact, we have been waiting over 20 years. In 1986, 22 years ago, the Canadian Council for Refugees adopted a resolution opposing governmental legislative proposals that violated the principle of an appeal on the merits. Those proposals became the new refugee determination system that came into effect in 1989, still without an appeal on the merits.
In the following decades, for the refugee advocacy community in Canada, led by the Canadian Council for Refugees, the two most fundamental and persistent criticisms of the refugee determination system have been the lack of appeal and the quality of appointments of board members.
The need for an appeal is constantly reasserted by our members across Canada, who, year after year, are confronted with the dilemma of responding to refugee claimants who appear to have been rejected in error. In many cases, there is simply no mechanism to address those errors because there is currently no appeal on the merits.
The relevant international human rights bodies have also identified the need for an appeal. The UN High Commissioner for Refugees has been clear. In a letter to the Minister of Citizenship and Immigration in 2000, the High Commissioner's representative stated: ``UNHCR believes that an appeal on the merits of negative decisions at first instance is a fundamental feature of a credible refugee status determination system.'' The same message was repeated in 2002: ``UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process.''
In February 2000, the Inter-American Commission on Human Rights published its Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System. They stated that:
Where the facts of an individual's 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.
In 2004, the UN Committee against Torture, hearing a complaint from Enrique Falcon Ríos, a rejected refugee claimant, found that the Canadian refugee determination system had been unable to correct a wrong decision in his case. The committee found that the Immigration and Refugee Board of Canada, IRB, had discounted strong evidence that Mr. Falcon Ríos had been tortured and that the way the evidence had been treated represented a denial of justice. It concluded that removing him would constitute a violation of Canada's obligation under article 3 of the Convention against Torture. Because of the lack of an appeal to correct the error at the first instance, Mr. Falcon Ríos was forced to turn to the UN to protect himself from refoulement to torture.
As you know, the Immigration and Refugee Protection Act passed by Parliament in 2001 contains a right of appeal on the merits for refugee claimants. As a trade-off for the introduction of the appeal, the parliamentarians accepted that the number of board members deciding a first-level hearing be reduced from two to one. Parliament never debated, let alone approved, a refugee determination process with a single decision maker and no right of appeal. Yet, such a process has been in place for nearly six years, and it is an outrage against the principles of democracy, the rule of law and respect for human rights.
We are here today to urge you to use all your power and influence to have this bill passed as quickly as possible. Bill C-280 does no more than implement the law already thoroughly debated and passed by the Senate. The House of Commons passed Bill C-280 last June. The Senate has already had nearly a year to consider the bill. The government has similarly had 10 months to prepare itself for the implementation of the Refugee Appeal Division. Meanwhile, the human rights of refugees continue to be violated, with life-threatening consequences.
Let me give you an example. A man came to Canada with his family in 2005, fleeing threats to his life. Some of his family members had actually been attacked. He was poorly represented in his refugee hearing and the board member denied his claim. He applied in 2007 for judicial review, but leave was denied, as it is in some 90 per cent of cases. He knew he had nothing to gain from a pre-removal risk assessment, PRRA, because he had no new evidence to present; the problem lay with the initial decision, which, in the absence of an appeal, no one would review. In late March of this year, the family returned to the country of origin. Less than two weeks later, his persecutors attempted to kill him. He was fortunate to get away with his life but was badly beaten and stabbed.
It is to avoid other refugees facing such threats to their lives that we ask you to expedite passage of this bill.
I would like to comment briefly on remarks made to you recently by government officials. Several points they made are highly questionable. I would point out, for example, that the PRRA cannot serve to correct errors in the initial decision because it only considers new evidence. Judicial review at the Federal Court is available only if leave is granted. As a result, most claimants do not receive any review of the initial decision. The arguments about costs and delays do not take into account the savings that would be generated through the introduction of the appeal, for example from fewer people applying for judicial review or PRRA if they had access to the appeal.
More generally, I would put it to you that it is improper to be arguing against the implementation of the Refugee Appeal Division on the basis of criticisms of the process as established in the law. In a democratic country committed to the rule of law, we expect that the laws passed by Parliament will be implemented by government. From time to time, as the government finds the laws inadequate to the realities, we expect that it will propose amendments to the law. More than six years have passed since Parliament passed the Immigration and Refugee Protection Act, creating a refugee determination system that gave refugee claimants a right of appeal on the merits. No amendments to the act have been introduced by the government to the refugee claim process.
The law as passed by Parliament needs to be implemented. If in the coming months and years the government wishes to change the process, it is of course open to the government to introduce amendments. The Canadian Council for Refugees would be happy to participate in a process to develop improvements to the current system, but the first and pressing priority is to respect what is already in the law.
It has been proposed in the Senate that Bill C-280 be amended to delay implementation of the Refugee Appeal Division for a further six months. We urge you not to make such an amendment. Refugees have already been waiting far too long. Further delays may cost lives. The government has had years to get ready for the implementation of the Refugee Appeal Division, including nearly a year since the House of Commons passed this bill, which was taken as a signal that the bill might well pass into law.
Just a few years ago, I appeared before another Senate committee studying amendments to the Citizenship Act. Despite some concerns about the amendments, the committee agreed that the bill should be passed without amendment and as quickly as possible so that a number of lost Canadians could recover their citizenship.
I hope that you will act similarly in the case of Bill C-280. The injustice that needs to be corrected is at least as great. What is at stake here is not only citizenship but life itself. Refugees are among the most vulnerable groups of people in Canada; it is easy to discount, neglect and mistreat them. Many of them are people of colour; many are women; many are children. We ask you to act quickly on behalf of their human rights by ensuring that they have access to the right of appeal to which the law entitles them.
The Chair: Thank you, Ms. Dench.
Gloria Nafziger, Refugee Coordinator, Amnesty International Canada: As a worldwide human rights organization, Amnesty International Canada attaches great concern to refugee protection systems. Refugee protection is a preventive measure necessary to ensure the protection of human rights. When refugees are well protected, persecutors cannot get their victims.
Our core work with refugees in Canada is to review the cases of failed refugee claimants to ensure that no one is removed from Canada back to a country where they may face risk of a grave human rights violation. We have been doing work for the better part of the past 20 years, and we have extensive experience reading negative decisions from the IRB and preparing letters of support on behalf of individuals for pre-removal risk assessment and humanitarian and compassionate applications.
In 2001, we welcomed the Immigration and Refugee Protection Act and the creation of the Refugee Appeal Division. While we raised concerns at that time about the RAD, with its lack of oral hearing, its reliance on a paper review and its focus limited to the original record with no room for new evidence to be presented, concerns that we still have today, we believe that Canada must follow through with the promise that was made in the law to establish the Refugee Appeal Division.
We believe that this is a vital step in order for Canada to uphold its international obligations to ensure that convention refugees are afforded the protection they are entitled to by law. The system as it exists today creates a protection gap that must be rectified immediately,
Naomi Kikoler, Articling Student, Amnesty International Canada: Since World War II, Canada has been a leader in the area of refugee protection. In recent years, our commitment to refugees has been cast in doubt by the government, as the government has stalled with the implementation of the Refugee Appeal Division.
Under article 14 of the Universal Declaration of Human Rights, the right to seek asylum from persecution is a basic human right. This principle has been echoed in numerous treaties to which Canada is a party. As a signatory of the 1951 Convention relating to the Status of Refugees and the subsequent 1967 protocol, Canada has further acknowledged that it respects the right to seek asylum and that it has subsequent obligations under international law to fulfill, in good faith, its treaty obligations and institute a procedure that allows for the effective determination of those who are convention refugees and, therefore, entitled to protection under the convention and the corresponding rights enshrined in the convention.
A fair assessment that provides, as the UNHCR requires, an effective remedy entails ensuring that refugee claimants have an opportunity, immediately prior to being removed, to present new or previously unrecognized evidence to support their claim for convention refugee status. RAD, in conjunction with the PRRA, allows for that. One without the other fails to meet this international standard.
Furthermore, under article 33 of the 1951 convention, Canada has a non-derogable obligation of no refoulement. This obligation is similarly echoed in article 3 of the Convention against Torture and article 7 of the International Covenant on Civil and Political Rights. These obligations require states to establish a remedy where a first-instance decision faces thorough scrutiny on points of both fact and law.
The UNHCR's handbook, established in 1977 to establish procedural guidelines for the implementation of the convention, further requires that the right of appeal be afforded to the applicant and also stipulates that the applicant should be permitted to remain in the country while their appeal is pending. Canada has an obligation to ensure that a well-functioning system is in place for refugee determination. The absence of such a system will result in situations of refoulement and thus the violation of international law by Canada. As Ms. Nafziger mentioned, Canada has been criticized by the UNHCR and the Inter-American Commission on Human Rights for its failure to implement a merits- based appeal.
Canada's international obligations are clear. A body must be established through which new and unrecognized facts can be presented as a means of ensuring that refoulement does not occur, that protection is granted and, therefore, that the rights of refugees are respected. Right now, Canada stands alones in the industrialized world as the only country that does now allow rejected asylum seekers the possibility to have first-instance decisions reviewed on points of fact and law.
The European Union has codified the right of refugee claimants to an effective remedy, including the right to apply to a court or tribunal to review a refusal or withdrawal of refugee status.
In the course of some of our research, we have also seen the significant impact that an appeal division can have on refugee determination cases. In Ireland, between 2000 and 2006, 6,814 asylum seekers were recognized as refugees. Of that number, 4,022, or 59 per cent of the cases, were recognized on appeal.
The government must implement the Refugee Appeal Division and, through establishing a merit-based appeal, reaffirm Canada's commitment to refugee protection.
The government has argued that RAD is not needed as there are alternatives in the form of judicial review, pre- removal risk assessment, and humanitarian and compassionate grounds. A careful examination of those so-called alternatives reveals that they do not provide the same remedy as RAD.
During earlier testimony before this committee, there was much discussion of judicial review. Amnesty International Canada would like to stress that seeking a judicial review before the Federal Court is not the same as seeking an appeal before RAD. First of all, one must apply for leave for judicial review, which is given in approximately one out of ten cases. This leaves approximately 90 per cent of leave applicants without the opportunity for review and no decision is given as to why leave was denied.
In keeping with our international obligations, with RAD, all denied refugee claimants would be entitled under the law to a merit-based review of their case. Second, in accordance with section 18.1(4) of the Federal Courts Act, a judicial review focuses primarily on legal and technical deficiencies of the Immigration and Refugee Board, and is therefore not the same as a merit-based review.
Third, the Federal Court grants a high degree of deference to the board's decisions on issues of fact, credibility and evidence, as they are of the opinion that the decision makers who directly interviewed the claimants and were presented with the evidence were in the best place to make a decision. This hampers the ability for a merits-based review.
As the UN High Commissioner for Refugees has stated, unlike the Refugee Appeal Division, the Federal Court judicial review is not an appeal on the merits. The court cannot replace a decision by the IRB with its own judgment.
Limitations in the scope of review by the Federal Court make it all the more important for applicants to present a strong application to be granted leave. Therefore, it is essential they have a lawyer to negotiate the system, thus raising a serious access to justice problem. Without adequate legal aid, it is difficult for many refugee claimants to afford to hire a knowledgeable lawyer or have legal representation at all.
All of these problems raise serious questions about the legitimacy of referring to the judicial review as an effective remedy to a negative refugee determination.
We have a series of example cases that Amnesty International Canada has worked with. I will describe one to you with in regard to Mr. M. In 2001, Amnesty International Canada reviewed the case of Mr. M, the son of a prominent Uighur leader in China. He was detained and beaten by Chinese authorities on numerous occasions. In 1999, he was an eyewitness to the public execution of a leader in his community. The execution was followed by a demonstration which led to a riot, resulting in the detention of 500 to 600 people. Given his participation in the demonstration and his family's high profile, he fled in the days following the execution, as all who were present at the demonstration were being hunted and detained. He was found not to be credible by the IRB. Much of the credibility findings resulted from problems with translation at the refugee hearing as well as a lack of understanding of the Uighurs' history and culture in China.
Mr. M.'s case was one of several Uighurs cases that Amnesty International examined in 2001-02, all with similar problems. At this time, Uighurs were a relatively new group of asylum seekers in Canada about whom little was known. The majority of these cases were eventually successful by way of either a pre-removal risk assessment or humanitarian and compassionate grounds, but only after several years.
While there were some glaring errors in the original decision, Mr. M. had to remain in Canada for many years before he was eligible to apply for a PRRA, as other failed asylum seekers have had to do. A pre-removal risk assessment is initiated by the Canada Border Services Agency, CBSA, and only when a person is removal-ready, which means they must have a valid passport and a means to return to their country. An appeal immediately following a negative decision would provide the opportunity to more quickly resolve their immigration status in Canada and reduce the burden of subsequent applications to the Federal Court and PRRA or humanitarian and compassionate grounds decision makers. It is in everyone's interest to resolve refugee cases in as timely a manner as possible.
Ms. Nafziger: I will spend a few moments referring to some of the problems we see with the PRRA and the humanitarian and compassionate grounds tool.
The pre-removal risk assessment is not a merit-based appeal of the original claim. There is a serious restriction on new evidence at the PRRA, which we have seen in numerous cases that have come to our office and, again, there is a very low decision rate. The new evidence restriction was particularly problematic in a case we saw from Colombia. The Colombian asylum seeker provided extensive testimony at his hearing but was found not to be credible. At the time of his PRRA determination, he presented more evidence that he had not provided at the earlier testimony, but the new documents were not accepted by the PRRA officer because they were not considered to be new evidence. It was found that they were reasonably available at the time of the refugee hearing and they should have been introduced at that time. The only new evidence the individual could present was the fact that an additional family member had been shot and killed in Colombia. This evidence in and of itself was not enough to convince the PRRA decision maker that the individual was at risk, and he was rejected.
The PRRA review does not review the evidence that was before the board at the original claim and limits what it considers to be new evidence, and therefore it is an ineffective tool for properly examining risk and cannot be considered a remedy following a negative refugee decision.
We also have concerns with respect to the single decision maker and the onus of responsibility that lands on a single decision maker, and how the reduction of two decision makers to one has put inordinate pressure on a single decision maker who is required to make extremely complex decisions that require sensitive examination without the ability to consult and defer to another member with more experience.
In the case of a refugee claimant that we examined from Iran, the individual made a claim for protection shortly after arriving in Canada. He was a victim of torture and suffered from a serious head injury. His claim was denied. Shortly after this, his mother arrived in Canada and made a refugee claim on essentially the same facts. Her claim was accepted.
It is often the case that victims of torture and serious traumatization, such as women who have been raped, are the most adversely affected by a lack of appeal.
It is our conclusion that the current refugee process does not provide a meaningful protection to refugees. The RAD was designed to support the implementation of a single decision panel at the Refugee Protection Division. It was meant to provide an opportunity to ensure quality and consistency in IRB decision making. It was meant to offer the opportunity to correct errors in the first instance, thereby mitigating costly and time-consuming subsequent proceedings. The refugee determination system as it stands is worse than it was prior to the introduction of the current act. Introducing the RAD would be one step toward correcting this wrong. We urge you to pass the bill without delay.
In 2004, the House of Commons Standing Committee on Citizenship and Immigration adopted a motion asking the government to implement the RAD or to advise the committee of alternatives. Since then, numerous members of Parliament, refugee advocacy groups, refugees and concerned Canadians have repeated this demand. The time to act is now. Amnesty International respectfully requests that Canada respect its international obligations and implement the RAD without delay.
The Chair: One clarification, Ms. Dench. You said that in Mr. Falcon Ríos' case the appeal was necessary because Mr. Falcon Ríos was poorly represented in his claim. What did you mean by that? Who represented him and who came to the conclusion he was poorly represented?
Ms. Dench: I did not say he needed an appeal because he was poorly represented. He needed an appeal because he was wrongly rejected. It happens that he was poorly represented at the hearing. That is a judgment made by people who know the case. The person who was supposed to be representing him was not available at the last moment and someone else stepped in who did not know the case and tried to represent him before the board without knowing the case properly. That did not help in the presentation of the case.
The Chair: Was it a lawyer representing him?
Ms. Dench: I believe it was a non-lawyer.
Senator Poy: Any of you can answer, but perhaps Ms. Dench can begin. You spoke about the position of government officials. We have heard from a number of government officials, and I gathered that their main concerns were the huge backlog we have and false claims resulting in an even larger number of refugee claimants.
They said, without really explaining, that the RAD would be based on the original documentation, that it would not be an oral appeal and would not make any difference. They said also that there are enough legal steps to allow appeals at this time. How would you respond to that?
Ms. Dench: First, we appreciate that managing the refugee determination system is a challenging and difficult task. We know that no government will find it easy to do. Having said that, we are dealing with fundamental human rights, and one must deal with the difficulties that that necessarily entails.
With regard to the huge backlog and encouragement of false claims, we would agree that a very long processing time encourages claims by people who do not have a well-founded fear of persecution but feel they may have some advantage by being in the claims process for some time. Our members are aware of such scenarios. We understand that for that reason it is important that a backlog not develop. It is also in the interest of refugees that they get swift determination, so we fully support the goal of quick determination.
There is currently a backlog, and that is largely the result of the failure to appoint sufficient decision makers to the board. This problem has occurred at various times in the board's existence. I think it is currently at its most acute state because of a chronic problem of failing to appoint sufficient board members. It is a basic principle that if there are not enough decision makers, they will not be able to make the decisions, and backlogs will develop.
Any process depends upon the government's managing it correctly. There is no way to legislate a refugee determination system that will work smoothly. It depends upon the people in charge of making it function doing their job well, with all the difficulties that entails.
Over the years, we have found that there are constantly proposals for changing the refugee determination system, as if one could invent a sort of self-executing refugee determination system that, just by the rules themselves, would miraculously lead to swift and fair refugee determination. Whatever the laws are, human beings actually have to put the refugee determination system in place.
We could get into more detailed arguments about what the impacts would be of having the RAD. Aside from that, if the government wishes to deal with the backlog and address the need for a swift determination process, it has the tools it needs to put in the resources to make it happen. The decision makers need to be in place.
Regarding false claims, we have frequently discussed with the government that if people making claims that the government believes are not founded are coming from a particular part of the world — and sometimes people are misled into making claims — then that needs to be addressed as a problem in the refugee claim process. We have repeatedly invited the government to work with us on that particular problem. For some reason, there is no follow-up to it.
You also mentioned the fact that the RAD would be based on the same documents the claimant had at the initial hearing. This is true. Many refugee advocates felt like the Refugee Appeal Division is not the full appeal that one would like. Amnesty International just made comments about that. That comment was made frequently. The RAD is a very limited sort of appeal. The reason we refugee advocates are consistently arguing for it to be implemented is because it is in the law. It is what has been established and approved by Parliament, and that should at least be put into place.
Finally, you say that the government argues there are enough legal steps. That argument is repeated on many occasions, but it fails to take into account that no step provides an appeal on the merits. The judicial review is the only review of the decision, and that is only in some cases because most cases are not granted leave by the Federal Court. Therefore they do not receive any kind of review. Even if they make it to the Federal Court, it is a narrow review, which means some errors go uncorrected. The pre-removal risk assessment is not a review of the IRB and so it does not correct errors. The humanitarian and compassionate grounds are not a review of the original decision.
Some people who are refugees and who are wrongly refused may be accepted under humanitarian and compassionate grounds, but it is not a review and there is no stay of removal when making an application. A person who applies for that can be removed and sent back to face persecution, despite the fact that they have applied under humanitarian and compassionate grounds.
Senator Poy: Therefore, no process exists where there could be an oral appeal?
Ms. Dench: In the law or what in is implemented?
Senator Poy: What is implemented.
Ms. Dench: No. With the humanitarian and compassionate grounds process, the person making the decision could ask someone in for an interview. They do not do that often. With the pre-removal risk assessment, they could ask a person in for an interview. The person in the pre-removal risk assessment can look only at new evidence. They cannot go back and say that the board was wrong. They must base themselves on new evidence only.
Senator Poy: Therefore, the refugee cannot ask for an oral review?
Ms. Dench: Not an oral review, no.
Ms. Nafziger: Regarding the RAD being limited to the facts that were in front of the Immigration and Refugee Board, based on the number of decisions that we have reviewed in our office, I would say there is still significant opportunity, upon review of those original documents, to correct errors that were made. It would still be a very significant and giant step forward for many refugees, even if there was an opportunity on the limited basis that does exist.
Ms. Kikoler: Regarding the backlog, we were in contact with several of our colleagues at various Amnesty International sections around the world. We asked for information about their appeal process. Echoing Ms. Dench's point, the right to an appeal is a fundamental human right. In the United States, there is currently a backlog of 166,200 cases. Recognizing it is not an ideal system and that there are problems with the American system as well, in the United States you can appeal your decision. Your first appeal will be on all issues and a new decision can be rendered. If you get a negative determination at that stage, you can appeal that decision as well and ask them to reconsider it arguing points of law and fact. If you get a negative determination at that stage, you can then appeal one more time and file a motion to reopen. At that point, you will have to argue that new and previously unavailable evidence has come to your attention.
Even where there are quite serious backlog issues, alternatives and appeals have been implemented in other countries. That is one thing to keep in mind.
The Chair: Since I have a list or questioners, I ask that senators pose questions and that we shorten our answers to give everyone an equal opportunity to be involved.
Senator Munson: I will keep it short. Senator Poy covered some of the basic questions I wanted to ask. I will try to get away from abbreviations on the Refugee Appeal Division and the pre-removal risk assessment, for the odd person watching CPAC who is interested in this debate.
On a personal view, I have been a senator for four and a half years, but I have the impression that all governments have the ability, when they do not like something, to talk it out. What I have learned in the Senate is that if someone says ``I adjourn this debate,'' that means it continues and continues. Why are governments so afraid of this Refugee Appeal Division? Do you get the impression that we are talking to ourselves sometimes? We continue talking and talking. You talked about 2001. It is now 2008. You have talked about thousands of people slipping through the cracks, going back to their own countries and probably getting killed. Do you feel that this will pass or that there will be light at the end of the tunnel on this issue?
Ms. Dench: I will plead guilty both to talking too long and to using acronyms.
Thank you for the question. Looking at the situation and the failure to implement the Refugee Appeal Division, it comes down to the fact that we are dealing with refugees whose lives do count for too little in the Canadian context and also around the world. It is necessary for everyone who cares about human rights to remind ourselves that refugees are human beings and that it is not acceptable to treat them as problems to be managed and as objects of bureaucratic processing challenges. We are talking about human lives.
I find it inconceivable that if we were talking about the rights of Canadian citizens the government would fail to implement a fundamental piece of a system that was passed by Parliament. For example, imagine a bill dealing with young offenders, and a trade-off was made where there would be a single member decision in return for an appeal, but you do not implement the appeal.
We are here to assert, as Canadians, that refugees need to be treated with full respect and their rights must be respected. We are here before you, the Standing Senate Committee on Human Rights, and we are optimistic that this disgrace will come to an end and that in the coming weeks there will be an appeal for refugees.
Senator Munson: Just a brief question on substance. Would it cost less for a claimant to bring an appeal to the Refugee Appeal Division than it would for the claimant to seek leave for judicial review at the Federal Court?
Ms. Dench: I think it could cost much less at the Refugee Appeal Division. It is a much less heavy judicial process than the Federal Court, which involves the expenses from the claimant's point of view, the expense of the court as well as the expenses from the Department of Justice, which represents the other side. The Refugee Appeal Division would be a quasi-judicial process and therefore much less expensive overall.
Senator Di Nino: Welcome, particularly to Ms. Kikoler. Is this your first time here?
Ms. Kikoler: Yes.
Senator Di Nino: I suspect we will be seeing much more of you. Welcome and good luck to you.
Ms. Kikoler: Thank you very much.
Senator Di Nino: My line of questioning will change somewhat after having heard Ms. Dench. I will start by quoting Ms. Kikoler when she said that we need ``a well-functioning system in place.''
The last five immigration ministers — three from the Liberal government and two from the Conservative government — have said we do not need this. We have, in Ms. Kikoler's words, a well-functioning system in place. I may read you the quotes in a while.
I am concerned about some of the criticism being directed at Canadian legislatures and Canadian governments of at least two different stripes. In particular, I am concerned by the comment made by Ms. Dench that lives count for very little in the Canadian context. I think that is offensive. I do not believe any of the five ladies and gentlemen who have held the position of immigration minister, including the current one, could be described as not caring about people's lives. Are you telling me, then, that these five ministers really do not care what happens to these people? Is that what you are saying, Ms. Dench?
Ms. Dench: I think it is not just the individual ministers. I think collectively we all have a responsibility to play in how Canada receives refugees.
As I said, it is not just in Canada; if you look around the world at the way refugees are treated, huge violations of rights happen. We ask ourselves, ``Why do we let these things happen?''
The ministers have a certain level of authority. However, we as individual citizens have authority, and so do you, as senators.
Senator Di Nino: We will discharge that to the best of our ability.
When Bill C-280 was in the House, Mr. Volpe voted against the bill. He was Minister for Citizenship and Immigration. Two other ministers, as well as others, refused to vote for this bill. They said, in effect, ``We have one of the best systems in the world and we have a process that is fair.'' Nothing is perfect — I am not suggesting that even if we had the RAD, certain things would not slip through. They believe, as we believe, that for all the reasons that have been stated, at this time we really do not need to implement that portion of the legislation passed in 2001.
The Auditor General pointed out this week that 41,000 refugees are lost or missing; we cannot find them. There are somewhere between 900,000 to 950,000 in backlog. The ministers have said that if this bill were implemented we might have to go back for years and review all of those decisions. That is 40,000 to 50,000 files. That means those people who are now in the backlog will be there for a longer period of time. They may have to wait years. Is that fair to them?
Five immigration ministers — people who were given the responsibility for this file by two different governments, one Liberal and the other Conservative — have said that we have a good enough system to be able to deal with these things here. You obviously disagree. I would like to hear an opinion from all of you on this one.
Mr. Barahona: We have differing opinions. We truly believe this bill needs to be passed as soon as possible. It has been approved by Parliament.
I want to echo Senator Munson's comments. You are not alone in feeling that governments find the ability to talk over and over when they do not want to pass something. This is an example of that.
Senator Di Nino, you said we have one of the best systems in the world. Yes, we do, but it is not perfect. This is an opportunity to improve on it and to respect human rights. This is an issue of respecting the human rights of people. The Canadian government, both the House of Commons and the Senate, studied this bill. We continue to talk. Your observations are shared by many Canadians with whom we talk and work.
I urge you once again to please pass the bill. Let us make our system even better than it already is.
Ms. Nafziger: Our current immigration system is adequate, but it is not perfect. The legislation was created with two legs, but it is missing one of those legs. It is limping along.
The pre-removal risk assessment and the Refugee Appeal Division were created to work together. One cannot be effective without the other. The PRRA can look only at new evidence and not at the record. That is the fundamental problem. There is nowhere to look at the original decision.
I do not know how you can understand what that is like until you sit in a room, read the refugee claims, talk to the people who have been failed at the initial decision making process and understand how, once you have that negative decision in your pocket, there is nothing in the system that will ever correct the negative decision. It is like a death sentence. Trying to overcome the impact of an initial negative decision at the Immigration and Refugee Board is like climbing Mount Everest. It is a huge, insurmountable challenge; it is virtually impossible.
Senator Di Nino: Are the other steps available to these individuals not sufficient? I am referring to the pre-removal risk assessment, which I believe Canada is one of the few countries to have, and the other two steps.
Ms. Nafziger: They are absolutely insufficient because they do not review the initial decision and the original error. The limitation on new evidence at the PRRA is serious. I provided you with an example that illustrated, in the case of a particular individual, that when you put together everything he had on his application from the beginning, along with his new evidence — when it was all collected in one place at one time and you could look at the entire record — it was an overwhelming list of thing that had happened to that man. However, he did not have some of that documentation when he appeared at the Immigration and Refugee Board. There was never an opportunity again to present that information at a second place.
He was certainly treated unjustly in Canada. Ultimately, his decision had to be resolved by an immigration minister. I am glad our ministers have the discretion to resolve cases, but it pains me that we have to go to the minister to have those issues resolved. We need a system that can resolve errors.
Senator Di Nino: When you have cases that need to be looked at again, do you use local members of Parliament to help you? Is that an effective way for you to at least get the case in front of a minister?
Ms. Nafziger: We do that as little as possible. I would like to believe that we have created a system that we can use as is to do that. I would say that going to a member of Parliament to resolve an immigration or a refugee case is a last resort. I do not believe that we should have to rely on members of Parliament to resolve failures in the refugee protection system in Canada. Yet it happens all too frequently. I think any member of Parliament will tell you that a huge part of their work is trying to resolve the damage that has been done by failed refugees at first instance.
Senator Di Nino: We will ask some of them. Thank you.
Senator Lovelace Nicholas: This might be a naive question, but I am fairly new to this subject, so please bear with me. How do refugees chose to come into the country, or do the countries pick them to come into their country? I do not understand. If I was a refugee, would I say, ``Do I want to go to Canada or do I want to go to the United States?''
Ms. Nafziger: I could give you a basic course on refugees, but I am not sure we have time for that. We are talking in this case about spontaneous arrivals. We are talking about people who are outside of their country and who believe that they need protection immediately. They go wherever they can to find that protection. Sometimes that means they get to Canada, but not always, and there are many reasons why they might get to Canada and not somewhere else. People could wait outside Canada or outside other country in the hope that eventually they could be eligible for a resettlement place. That is done through the overseas selections process, but often that process can take years and years. Many of the people who arrive in Canada and making refugee claims here have urgent protection needs. They are not in a position where they can sit and wait for years for someone to decide whether they are refugees.
The Chair: The debate is long as to whether those who wait in the queues and follow UNHCR are any more disadvantaged than those who come to our shores. You have entered into that debate before, and so have I, and the debate should continue.
However, at the moment we are looking at this bill. I thank all of you for your opinions and your experiences that you have shared with us. We will continue with our study on Bill C-280.
Honourable senators, our next panel of witnesses will give you some of the legal implications of Bill C-280 and hopefully of the entire previous immigration bill. We have before us, from the Canadian Bar Association, Mr. David Matas and Ms. Kerri Froc; and from the Barreau du Québec, Mr. Jacques Beauchemin, Mr. Mitchell Goldberg and Ms. Catherine Dagenais.
Welcome. As you know, we are studying Bill C-280, the appeal mechanism. We are looking forward to your advice and information. Please make your interventions as crisp as you can so that we can have time for questions from all senators.
[Translation]
Catherine Dagenais, lawyer, Research and Legislation Services, Barreau du Québec: Madam Chair, thank you for inviting me. The Barreau du Québec is a professional association with just over 22,000 members whose mandate is to protect the public. The association carries out this mandate by ensuring the rule of law, supporting the separation of powers, promoting the equality of all people in the eyes of the law and protecting the often precarious balance between citizens' rights and the powers of the state.
As a lawyer with the Barreau du Québec's Research and Legislation Services, I coordinate the work of the Barreau du Québec's citizenship and immigration law committee, which is composed of about ten citizenship and immigration law practitioners.
The committee analyzes various questions concerning immigration and was directed to examine Bill C-280.
I am here today with Mitchell Goldberg and Jacques Beauchemin, members of the Barreau du Québec's citizenship and immigration law committee. Mr. Goldberg was called to the bar in 1989 and Mr. Beauchemin in 1975.
Today, the Barreau du Québec will comment on the implementation of the Refugee Appeal Division. I will briefly explain the Barreau du Québec's position, which is detailed in the letter we submitted, and my colleagues will provide additional information and answer your questions.
The Barreau du Québec believes it is critically important to set up the Refugee Appeal Division in order to fully realize the right to appeal that is essential to the proper administration of justice.
Under the Immigration and Refugee Protection Act passed by Parliament in 2001, members of Parliament agreed to reduce the number of members in each case from two to one, and to grant refugee claimants protection in the form of the right to appeal claims that have been denied. These two elements of the Immigration and Refugee Protection Act are inextricably linked. Despite the fact that this bill, including clauses creating the Refugee Appeal Division, was passed in 2001, the government has not followed up on its intention to set up the Refugee Appeal Division when the act came into force in April 2002.
As such, the Barreau du Québec believes that the appeal mechanism for negative decisions is an essential element because mistakes can be made, mistakes that can have a profound impact on the lives of claimants.
In the existing process, a refugee whose claim is denied can ask the Federal Court of Canada to conduct a review of the decision. However, in such cases, these are limited judicial reviews that require approval, and previous decisions are overturned in very few cases. Judicial reviews of the legality of Federal Court decisions are more limited in scope than the appeal that would go before the Refugee Appeal Division.
Conducting a judicial review does not enable the Federal Court to look at a case from the beginning and to arrive at conclusions that differ from those of the board. The Refugee Appeal Division would allow for a new interpretation of the evidence and the documents, which could address issues relating to erroneous findings and credibility.
There are also different kinds of remedies for different purposes, such as applications to become a permanent resident on humanitarian and compassionate grounds and pre-removal risk assessments. First, it is important to note that this is not a remedy against the board's decision. These processes do not dispute the board's decisions. Further, the review is limited to new and different elements arising since the board's decision. That means that mistakes made by a member cannot be corrected, nor can the merits of a particular case be verified using either of these remedies.
Moreover, a major advantage of the Refugee Appeal Division is that it would develop expertise that the Federal Court does not have when it comes to ruling on refugee status determination. Jurisprudence could be established to ensure the uniformity and coherence in the analysis of evidence and the interpretation of legal concepts relating to this subject. This would certainly improve justice and constitute progress in terms of law. We might even hope that by creating a legal body, by contributing benchmarks and rigour to the process, the decisions made by those handling these cases initially might be made more rapidly and might be better informed. This could result in a reduced number of cases going to the Refugee Appeal Division, and even to the Federal Court because claimants would be less likely to take their cases that far.
In conclusion, the Barreau du Québec believes that the appeals procedure is fundamental because it is the only procedure that would make it possible to amend a substantive decision for unsuccessful refugee claimants. The repercussions are too serious for one single person to decide their fate.
Furthermore, the division would ensure coherence of case law in this field. The Barreau du Québec therefore urges the Senate to recommend that this bill be passed as soon as possible.
Thank you for your attention, and we are available to answer your questions.
[English]
The Chair: We will turn to the Canadian Bar Association. In the interests of time, if the Barreau du Québec has covered some of your points, perhaps you could allude to that and go on to other critical points you may wish to make so that we can leave time for questions.
Kerri Froc, Legal Policy Analyst, Canadian Bar Association: The Canadian Bar Association, CBA, is pleased to appear before this committee today on Bill C-280, implementing the Refugee Appeal Division. Our written submission has been circulated to you in advance. As you will see from our submission, the CBA has been advocating for the Refugee Appeal Division for some time.
The Canadian Bar Association is a national association with about 38,000 members from across the country. The primary objectives of the organization are improvements in the law and in the administration of justice. It is in this light that we have made our written submission and make our comments to you today. I will ask Mr. Matas, who is a member of the Citizenship and Immigration Law Section and a past chair, to address some of the substantive issues of the bill.
David Matas, Member, Citizenship and Immigration Law Section, Canadian Bar Association: Thank you for inviting us. I have listened to the prior presentations and I also read through the prior session of this committee. To my mind, a fundamental aspect of this debate has been overlooked. Much of the discussion that I have heard is about the rights of refugees, and that of course is very important. However, what is at issue is not just the rights of refugees; it is the rights of Canadians, all Canadians — the rights of Parliament, the rights of the Senate, your rights and the rights of the people around the table. Legislation has already been passed, legislation you or your colleagues approved. The issue is whether the proclamation power can be used to change the sense of that legislation.
To me, it is a violation of the fundamental rights of the Canadian people for the will of Parliament to be thwarted, for the rights of the senators to be thwarted, when they have approved legislation and then the sense of that legislation is changed by the proclamation power. That is independent of the content of this particular piece of legislation. Obviously, through the bar, we believe in the rights of refugees and we endorse all the arguments we have heard about those rights. However, the issue here is not whether we should, for the first time, decide whether or not there should be an appeal for refugees. You have already decided that. Parliament has already decided that. The issue is whether the government, through the proclamation power, can change that decision. Surely, I would say, it should not.
I point out, first, that the appeal was an integral part of the legislation. All of the government statements leading up to the legislation linked the reduction of two board members to one board member with an appeal. The two went hand in hand. Every time the government made a statement about this legislation, saying that the board is going from two to one, it said ``and there will be an appeal.''
For instance, in March 2001, the government said that to ensure consistency in decision making and fairness to all refugee claimants, a paper review on the merits may be conducted by a division of the Immigration and Refugee Board. When the bill was introduced in the House of Commons, the same sort of statement was made: the government said that by consolidating several steps into a single decision and by combining the increased use of single-member panels of the board with an internal appeal on the merit, we will see faster but fairer decisions.
When the bill was first enacted and there was partial proclamation, the ministers did not say they had changed their minds about the appeal; they only said they will do it later, because right now they have a backlog. That backlog was basically resolved by the management of Jean-Guy Fleury when he was head of the board and by the introduction of the Safe Third Country Agreement, which raises other issues, but it resolved the backlog. Now we have a new backlog because of the failure to appoint board members, but that could easily be resolved if a full contingent of board members were appointed and the type of management practices that Mr. Fleury introduced were implemented.
As I said, the problem here is not just the merits of the appeal. I am not aware of any other piece of legislation in Canada that has been treated this way, where the government has changed the sense by using the proclamation power.
This reminds me a bit of something I have seen in the United States. They have vetoes, which I guess you could say is the mirror image or the converse of proclamation power. In some states, they have line vetoes and word vetoes. I have seen at least one state where a governor will veto different words throughout the legislation and completely change the sense.
Do you agree with that? Are you prepared to accept that? To what point are you prepared to allow the proclamation power to change the sense of what you have already endorsed?
That strikes me as the fundamental issue here. Obviously, this legislation was rightly passed. I think it makes a good deal of sense. All the statements about the Refugee Appeal Division that I have heard from the Canadian Council for Refugees, Amnesty International Canada and the Barreau du Québec are, as far as I am concerned, completely on the point.
You do not have to re-decide a decision you have already made. What you have to decide is whether you will abandon the powers you are supposed to have of enacting legislation and let the government change the sense of the legislation through its proclamation power.
The Chair: I will start the questioning. You are saying that the government is thwarting the will of the Parliament, in layman's language.
Senator Banks introduced a bill a few times to say that if bills are not implemented and moved forward, they will be wiped off the books of the land. That time frame is within ten years. I will ask our researcher and clerk between them to find out, and find the bill.
This is not the only piece of legislation where some or part of a bill has not been proclaimed. I am interested in what case law authority you are using, Mr. Matas. It would be interesting for us, wearing our other hats, in looking at Senator Banks' bill, which is in committee, in process.
What you are saying here today may have resonance elsewhere, too. Senator Banks has made the point that many bills have passed Parliament and have not been proclaimed, in part or in whole. You are saying that somehow this was unusual. Are you applying your comments to all bills then?
Mr. Matas: I am saying it is unusual because you have an integrated scheme here. Sometimes you get a piece of legislation that may never be implemented in its entirety, or it is piecemeal and has different components. However, here you have a scheme where the two were linked.
Basically, proponents of the immigration bill said that we will reduce the quality of the decisions at the first level because there will be an appeal; instead of two people, there will be one, because there will be appeal. I have never seen anything like that before. I challenge Senator Banks or anyone to point out a similar case where you have a package that is dismantled afterwards through proclamation.
The Chair: This point is to be continued when we look into where the other bill is.
Senator Di Nino: To follow up on that point, there are many examples, and I think we can probably supply them to you, if you wish. I do not think that is a question we need to debate, because the bill was created for that reason.
Mr. Matas, this tool has been used from time to time over the years. You do agree the government has that right, obviously?
Mr. Matas: I do not agree that the government has the right to amend legislation through the proclamation power. It is Parliament under the constitutional scheme that decides what legislation should be, not the government.
As far as I know, the government has always said, for this proclamation, that they would delay proclamation. They have never said that they will never proclaim this. The question is how long you can delay before it becomes never.
Senator Di Nino: I am not sure they have said that they will not proclaim this. I am not sure that statement has ever been made. That aside, I am not sure whether it is by convention or by statute that in effect the government has this privilege, this right, which they have used many times.
I am not a lawyer, but it has been suggested that if this bill is enacted, the legislation will be applicable to all those who have been denied since the legislation was approved in 2001. Is that a correct assumption?
Mr. Matas: Normally legislation speaks from the present. Legislation is not interpreted to be retroactive unless there is something specific in it. The normal interpretation of legislation is that it speaks from the day it is enacted. It would not go back to the old cases.
The government has a regulatory power, including a regulatory power to enact regulations about transitional provisions. It has already used that. There are some transitional provisions in the legislation, but there are also transitional provisions in the regulations, which are just passed by cabinet.
If the government did not want to pass any regulations, I suppose the way I would interpret it is to say that the legislation takes effect from the day it comes into force. However, to avoid any uncertainty, the government could pass some transitional regulations to deal with that issue.
Mitchell Goldberg, Member of the Immigration and Citizenship Law Committee, Barreau du Québec: I agree entirely with Mr. Matas. I would also like to add that I hope the Senate will be more concerned about protecting the rights of refugees who have been wrongly denied and correcting those errors, as the other groups have said. Every day that passes, another claimant may be unjustly denied. We need to focus on that rather than worrying about other people who might benefit.
I think Mr. Matas' comment is correct, but I urge the Senate to focus on preventing future injustices as quickly as possible.
Senator Di Nino: Ms. Dagenais, I want to get my mind around something. If this legislation were to pass, everyone who is denied as a refugee could then apply under the RAD, is that correct? Anyone who was turned down could apply.
[Translation]
Mr. Beauchemin: That is right. This is about giving the refugee claimant a true right of appeal. I think that at the beginning of her presentation, Ms. Dagenais said that creating this appeals division would improve the system. That would create jurisprudence that would be useful to members at the first level.
Decisions would be more coherent and the system would be improved, making it easier for members at the first level to make decisions. They would be able to do it faster because they would have jurisprudence to work with. Recourse to the Federal Court would be less frequent, and a lot of energy would be saved.
It is true that anyone whose claim has been rejected would be able to go to the appeals division. However, there will be movement toward a better system that will produce better decisions. I think that is very important. Currently, the system is incoherent.
In a given region, or even among members in the same region, there is sometimes a very high rate of rejection with respect to certain groups of refugee claimants, while their colleagues will have very high acceptance rates. That is what I mean by incoherence: neither refugee claimants nor Canadians understand why outcomes can be so different in the existing system.
Once implemented, the Refugee Appeal Division will build jurisprudence to minimize that kind of incoherence. I think that is very important. It will take some time, of course, but the system will be so much better that everyone will win in the end.
[English]
Mr. Matas: To follow up on that answer, anyone could but not everyone would. I have read some of the previous debates where it was suggested that everyone would. In fact, now anyone can go to a Federal Court, but not everyone does. If you go to Federal Court, it keeps you in Canada. Even though that is true, not everyone does it. In fact, a minority of people go to Federal Court. The suggestion that simply because there is an appeal everyone would go for it is simply unfounded.
Senator Di Nino: I think you are talking about a review of the documentation, the paper that is being presented. I suspect we would get most people to go.
Mr. Matas: In Federal Court, that is the way it starts off in a leave application. It is just review of the documentation.
Senator Di Nino: We will not argue that point; I do not have the time. The chair will cut me off, and I need to deal with another question for Ms. Dagenais.
If this bill is passed, do you think we should keep the other two avenues available for refugees who are once again turned down? Should we keep the pre-removal risk assessment and the application to the minister on humanitarian and compassionate grounds, or do you think that once claimants have been rejected twice we should eliminate the other two steps?
[Translation]
Ms. Dagenais: It is clear that they are different procedures, as has been explained. But I think that Mr. Goldberg can provide more information about the different procedures.
[English]
Mr. Goldberg: To answer your question, you implement the law. The law is about the Refugee Appeal Division. Correct me if my understanding is off, but we are not here today to discuss whether or not we should review the entire Refugee Appeal Division, the humanitarian and compassionate grounds provision and the pre-removal risk assessment. We are here today to decide — and I consider it to be absurd — whether or not to implement the law again.
As a lawyer who has been in private practice for 18 years, I can tell you that you do not know who the member of the IRB will be until you walk into that room and you see the board member walking into the room. Many times you know then and there, before the hearing starts, whether the client will be accepted because there is such a wide divergence between decision makers. That situation worsened when the Immigration and Refugee Protection Act went into effect; that is, when we went from two board members to one. Every day that goes on. As you can imagine, the people whose lives are being determined are terrified, knowing that the one person before them will determine their fate. Some of these people might be sent back to torture. I know you have heard this before, but imagine what it is like for those people to walk into that room. That is why the witnesses who have appeared before you are saying to implement the Refugee Appeal Division and do not delay. It is too fundamental.
The Chair: As a lawyer, we used to call it the judge's breakfast theory. I do not know what they are calling it in law schools now. For example, if you get a certain judge in criminal or constitutional law, you say that your chances have been severely diminished because you have watched his record. What is different in immigration as opposed to all other judges or commissioners who sit that way, and you assess their propensities, either to the left or to the right, or in whatever ideological or practical ways that they may have presented themselves? What is unique here?
Senator Di Nino: Who is to say who is right or wrong?
[Translation]
Mr. Beauchemin: However, in our legal system, after appearing before a trial judge, people have a right to appeal. And we hope that the person who hears the appeal will be a little wiser and reopen the case. I think that is exactly what the Refugee Appeal Division will be responsible for doing.
To add to Mr. Goldberg's answer to Senator Di Nino's question, I would say that the pre-removal risk assessment is not the same king of thing. When the Refugee Appeal Division comes into force, it will not consider new evidence. It will conduct paper reviews, as we said. It will not be able to examine new evidence that may have arisen either with respect to circumstances in the person's home country or because the person now has access to evidence that was not available at the first level.
That system must therefore remain in place to give claimants an opportunity to present new evidence, particularly if the evidence concerns their safety or freedom, prior to being removed from Canada. Applications for permanent residency on humanitarian grounds are a separate consideration. Sometimes people come to live in Canada, and they may marry or have children while they are here, and in terms of the purpose of the Immigration and Refugee Protection Act, specifically, family reunification, that opens the way for an application for permanent residency, but for a completely different reason.
The Refugee Appeal Division will consider risk to life, as might the pre-removal risk assessment should new evidence arise. I think that has to remain in place. As Mr. Goldberg was saying, we are not here to make decisions about other amendments to make to the Immigration Act or other ways to improve the legislation, but the Refugee Appeal Division will look at evidence and credibility.
Also, the judge at the hearing that you were talking about earlier might have a prejudice about someone because judges are human beings like the rest of us. Another decision-maker, before the same evidence, might have a different sense of the credibility of the person speaking, and I think that is one of the roles of the Refugee Appeal Division that you are going to set up.
It will improve the system and ensure greater respect for human rights.
[English]
Senator Di Nino: We have had extensive testimony that suggests that, because of the backlogs, we are actually doing an injustice to the refugees who are waiting. This step would add an additional period of time. I appreciate the opinion you gave me, but if we are trying to do justice, how do we do justice by adding another lengthy process?
Mr. Matas: People do not get to stay in Canada pending a humanitarian decision. That caused a lot of problems. There was actually a report of the House of Commons Standing Committee on Citizenship and Immigration on this issue last week, saying that in spousal cases people should get to stay until a decision is made.
I do not believe the Canadian Bar Association has taken a stand on pre-removal risk assessment. If Ms. Froc will permit me, I will provide my personal opinion. The pre-removal risk assessment should be replaced by reopening jurisdiction in the board. It deals with a change of circumstances. Indeed, that was considered at one time by the board. Mr. Showler may have something to add to that when he appears before you shortly.
I certainly agree with Mr. Goldberg. This is not the time and place to rethink the whole system. This is a matter of implementing what was already legislated.
[Translation]
Ms. Dagenais: People talk about backlogs, but earlier, we heard that several member positions are vacant. I want to reiterate that the Refugee Appeal Division can create jurisprudence so that members handling cases can benefit from case law that could improve turnaround times for the backlog.
[English]
Senator Poy: If RAD is implemented, as I hope it will be, will there be one or two members sitting in judgment of the original documents?
Mr. Goldberg: I am quite sure that it will be one person in a centralized office somewhere in Canada who will do an on-paper review of the decision.
Senator Poy: It would not be the same board member?
Mr. Goldberg: No. There would be a specialized Refugee Appeal Division that would be separate from the initial Refugee Protection Division.
Mr. Matas: As far as I can see, the legislation does not determine that issue. For the other divisions of the board, the number of members deciding a case has been determined by the rules. For the other divisions, it is normally one, but it can be up to three, depending on the complexity of the case. I assume that in this case they would do something similar. The rule would probably be that normally it would be one but that in a complex case it could be three.
Senator Poy: Who would decide whether it is one, two or three?
Mr. Matas: Currently it is nominally up to the chair of the division to decide how the panel is constructed.
Senator Poy: Will there be a separate board appointed by the government? Could we not run into the same problem we have now with the refugee protection board because the numbers are down?
Mr. Matas: The legislation could be proclaimed and they could appoint no one, which is the point Ms. Dench was making. The government has to make the legislation work. The system cannot work just through legislation.
Senator Poy: This is my tenth year in the Senate, and I do not understand why legislation passed by Parliament is not implemented or is only partially implemented. As was said earlier, parts of this legislation are implemented and parts are not. That makes no sense to me.
Mr. Matas: It makes no sense to me, either.
Senator Munson: Is there a danger that political appointments would be made to the Refugee Appeal Division rather having qualified persons on the board?
Mr. Matas: The appointment process is another big controversy, and it has a long history. There was controversy at the time Judy Sgro was the minister, and the appointment process was reconstituted. The present government did not like that appointment process and reviewed it. An advisory board was structured under the previous process, and all the members resigned. Who knows how it will shake up in the future.
I believe that we need quality appointments and a system that gets us that. That is another operational facet that is important to make the system work.
You are dealing with people coming from foreign countries with cultures and patterns of behaviour that are very unlike our own. There is a tendency for people who are unfamiliar with the refugee experience to extrapolate the Canadian experience abroad and think that things abroad are like they are in Canada, which leads them to a false picture of the actual dangers these people face. That is another operational facet the government must deal with when it implements this legislation.
Senator Munson: In my life as a journalist I asked a lot of questions, and in my life as a senator I have to ask a lot of questions, but the difference is that in this life I have to make a decision. In the political system we are pressured and told we have to do this or that. Well, no, I do not. I am an individual senator and I can make my own decision.
I was struck by what you said, Mr. Matas, about this being about the rights of everyone. You spoke about the proclamation power. In my years covering the Hill, I do not think I saw a headline about the government abusing proclamation power to stop something that is the right of everyone. In other words, it starts with a process. A bill comes before the House of Commons, where it is passed. Then it comes to us, and we pass it. We then learn that it has not been passed because it has not been proclaimed. That is worth studying. It challenges us all.
How do you get around that? Do you take that proclamation power away, or allow it only in a constitutional crisis of some sort?
Mr. Matas: The way to get around it in this case is to pass this bill. In effect, by passing this bill in this context you are taking that proclamation power away from the government.
Because the two components were tied together — reducing the board members from two to one and an appeal — one must legitimately ask whether Parliament would have passed this legislation if it had been presented differently, that is, if it reduced from two to one with no appeal, or whether the government would even have presented it at the time if that had been on the table.
I see this not only as an abuse of the rights of refugees but also as an abuse of the rights of Parliament. There is a way for Parliament to stand for its own rights, and that is by passing this legislation.
Senator Munson: Has the Barreau du Québec a view of what Mr. Matas has said on proclamation?
[Translation]
Mr. Beauchemin: Nobody would disagree with what he said. It would be interesting to review the work that preceded the adoption of the bill at the time. Vast consultations were held. An association of Quebec lawyers working in immigration law took part, and they all wanted an appeals division. Groups argued in favour of it. In a way, in their submissions, they agreed to move from two members to one because the appeals division was going to be brought in. That is how a kind of unanimity came about with respect to the bill at the time.
When Mr. Matas was talking about the rights of the people and the rights of Parliament, that was also about the rights of those who made submissions to Parliament at the time, who negotiated, in a way, with members of Parliament prior to the adoption of the bill, and who were told who their interests would be reconciled when the system was changed by reducing the number of members from two to one. That is important too. Nobody would disagree with what Mr. Matas said about the rights of Parliament and the people.
[English]
The Chair: I want to follow up on a number of points. I suggest to the committee that we might benefit by what was done on Senator Banks' bills. His bills lapsed upon an election and also on prorogation. There was testimony on proclamation. We should look to see whether that would be helpful on this point. I seek agreement from senators on that.
The sections we are talking about refer to appeals. Mr. Beauchemin, you put it correctly that it was negotiated along the way to get to the point we are at on this bill. It has been described as a limited appeal, but I would describe it as a bureaucratic appeal. We are to set up a division that will sit with one or three, as I read it, in the appeal division, and we will look at the essential evidence. From my years of experience, the paper that you present to a court is helpful. It sets the stage, but it is the interplay between the judge and the lawyers in presenting the case — that is, the opposing view and the rebuttal — that is persuasive in the essence of justice.
If we set up this massive system, I am not sure it will be someone in Ottawa screening things. I think it would have to be more elaborate. Would you not want a proper appeal? You will have the proper machinery in place. One wonders why you would not have a full and proper appeal as I think the public understands ``appeal.''
Mr. Matas: I wish to correct a previous answer. There is a provision in the Immigration and Refugee Protection Act that deals with board size. Section 163 states:
Matters before a Division shall be conducted before a single member unless, except for matters before the Immigration Division, the Chairperson is of the opinion that a panel of three members should be constituted.
The Chair: I refer senators and the witnesses to subsection 171(c), which states:
a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as the decision of an appeal court has for a trial court.
If I understand that section, it is contemplating one or three.
Mr. Matas: My answer would be the same as the one Mr. Goldberg gave earlier. If we are redesigning the legislation, maybe there are changes we would want to make. That is not the issue here now.
If there is an appeal, it can go to a hearing. However, the hearing does not come before an appeal division. One of the powers of an appeal division is to order a new hearing, but the hearing goes back to the Refugee Appeal Division. It is not as if one would be cut off from the possibility of a new hearing. It is just that it is not the people who decide whether there is a hearing who actually have the hearing.
[Translation]
Ms. Dagenais: The main argument right now is that the provision must be brought into force. We cannot wait for other amendments.
[English]
Mr. Goldberg: I totally agree with you, and many people here today would also agree with you that we would prefer to have an oral hearing for an appeal and the possibility of introducing new evidence. However, we are talking about what is in the law and respecting Parliament's will. As they say, half a loaf is better than no loaf at all. We take half a loaf, and many peoples' lives will be saved if it is implemented in a timely fashion.
Mr. Matas: I remember this debate when the legislation was passed. The government went for the paper review because of processing times. They thought it would be a quicker review than if you got into oral hearings. That was the consideration at the time. We can debate it, but the matter has already been debated and decided.
[Translation]
Senator Dallaire: The issue raised by Senator Di Nino is one that I think belongs within the context of human rights. Allow me to explain. It was related to the fact that if we were to add another appeal element, that would make the process more cumbersome and would slow things down for those waiting. But is there not a provision in human rights law or in the application of the law that says that people whose cases are already in the system can have them reviewed and have priority over new applicants? In such cases, the argument that the system is already overloaded would not support failure to apply this element of the bill. Departmental inefficiency must not constitute grounds on which to oppose the application of what I consider to be a fundamental element. Those already in the system would feel unfairly treated. As such, they should take priority over other people trying to get into the system.
Mr. Goldberg: The fact that many refugees have already been waiting for their hearings for a long time is not an excuse. The current government has chosen not to appoint a full contingent of board members. There is a 36 per cent vacancy rate at the IRB. That means there are 36 per cent fewer members than there should be.
Senator Dallaire, I remember you said, ``Where there's a will, there's a way.''
If the government had the political will today to appoint a full contingent of members, seeing as the money is already in the budget and many qualified people have applied, there would be no backlog in the refugee claims system. Simply saying the backlog is too great does not guarantee these people their basic rights, and that is utterly unacceptable.
[English]
Mr. Matas: That is completely right. The debate about the backlog is a false debate because it is an artificial backlog created by the failure to appoint board members. The system would not have a backlog. There is a budget allocated for it. There is legislation for the numbers. The system is in place to run without a backlog. The backlog has been artificially created by the failure to appoint board members.
A debate about how to manage the backlog is the wrong debate. The debate should be why new board members are not appointed.
Senator Dallaire: My point was whether or not those people have precedence in the process.
Mr. Matas: I accept your point, but the problem of deciding who gets in first would disappear if we did not have this situation.
Senator Dallaire: How long have these appointments been pending? With the previous government, was the board at 100 per cent? I do not believe so.
Mr. Matas: It was not at 100 per cent. They are now almost at 50 per cent or 36 per cent.
Senator Dallaire: That we have not had 100 per cent is a problem.
Senator Di Nino: Did you say 36 per cent?
Mr. Goldberg: I believe so.
Senator Di Nino: I think that is an incorrect answer.
Mr. Goldberg: I believe an official from the Treasury Board told you there is a 36 per cent vacancy rate.
Senator Di Nino: That is better.
The Chair: I think we have come to the end of the questioners and the time. I want to thank all of the participants. You have brought new perspectives and issues to us. As a Senate committee, we will continue to do our task by looking at the legislation and determining, once we have heard all the testimony, what we should do, whether we pass the legislation, do not pass it or amend it. As Senator Munson pointed out, he is now in that delightful position of having to make that decision. No doubt, we will all join him in that. Thank you for helping us to identify the problems. Thank you for your expertise and your opinions.
Honourable senators, on our final panel this evening, we have, as individuals, Professor Stephen Gallagher, from McGill University; and Professor Peter Showler, from the University of Ottawa.
Stephen Gallagher, Lecturer, Department of Political Science, McGill University, as an individual: Thank you for the opportunity to appear before you today to address this important issue of reform of Canada's refugee determination system.
Let me begin with my basic assertion, which is that bill C-280 should not be passed because the RAD would contribute little, if anything, towards the protection of refugees as understood internationally. It will, however, reinforce existing incentives to abuse the Canadian refugee system.
Any reform made to the refugee system should balance Canada's international obligation to grant protection to those fleeing persecution with the government's responsibility to effectively manage irregular migration. Specifically, the in-country refugee system should not act as a parallel immigration system. It should have features that discourage abuse. It should not encourage what in other countries is described as illegal immigration.
The reasons for this are cost and policy integrity concerns.
With respect to cost, international obligations must be respected, but if the policy goes further, such spending should be weighed against alternative uses. I would argue the existing in-country refugee policy goes much further and receives a policy trade-off free ride. The establishment of the RAD will reinforce this situation.
With respect to policy integrity, we are asking our officials to administer what is essentially a ``wet foot, dry foot'' policy with respect to irregular migration. The implications on public service morale and integrity are predictable and profound. The establishment of the RAD reinforces this reality.
Returning to cost, the Canadian system has no transparency. How much does the refugee system cost? I have looked at some numbers, and other numbers have been suggested, but ultimately a policy system that has regularized the status of hundreds of thousands of people over the past two decades has not been costed out. It is clear from a review of determination rates, countries of origin and outcomes that Canada's refugee policy system is more generous than that found in any other country.
With respect to policy integrity and consistency, there is none. Our public administrators, our embassy officials and our immigration officers are all aware and work with the daily reality that if an individual of any nationality can reach Canada, the refugee system will automatically award that person an extended stay with access to a range of publicly funded benefits. The foreseeable result is the various dysfunctions of a system that promotes ``rent seeking.''
With respect to specific points, first, in the absence of a manifestly unfounded policy, safe country of origin policy, or an effective safe third country policy, claims that have no merit will inevitably reach the RAD, which simply prolongs the case. Second, arguably, the IRB is already an appeal stage. In Canada, a refugee protection officer can expedite a case to a positive determination. Approximately 20 per cent of the cases are expedited. In the U.S., an asylum officer, who is a public official, can grant asylum. If the officer is unwilling to grant asylum, the claim is passed on to an immigration judge, who hears the case in the context of a removal hearing. In other words, arguably, the IRB Refugee Protection Division is already an appeal stage, making a further substantive appeal unnecessary. Third, adding the RAD, which does not consider new information, creates further distance between the claim and the PRRA review, thus complicating the latter procedure.
Fourth, when considering the effect of adding the RAD, the extra support costs must be considered. Most importantly, because of the overall delay, the rate of successful humanitarian and compassionate claims will likely increase, which further adds to Canada's expenditure. My central point is that such humanitarian expenditure should be weighed against other expenditures.
Finally, the establishment of the RAD will likely touch off a period of administrative uncertainty and undoubtedly lead to calls for a general amnesty. Given that the whole extended refugee policy system requires fundamental reform, it would be better advised to undertake the addition of the RAD in the context of a needed thorough restructuring of the Canadian refugee policy system.
In conclusion, although Canada is one of the hardest countries in the world to reach from the developing world, in 2007 Canada ranked fourth in terms of the numbers of asylum seekers. In 2008, it is very possible we will rank second after the United States. I would argue these numbers are a function of the structure, operation and outcomes of the Canadian extended refugee policy system. The fact is that no other country would consider a system that can be so transparently abused. The addition of the RAD will likely contribute little, if anything, to helping those fleeing persecution, but it will reinforce structural features of the Canadian refugee policy system that sustain and promote abuse.
Peter Showler, Director, The Refugee Forum, Human Rights Research and Education Centre, University of Ottawa, as an individual: Thank you for inviting me to attend as a witness. First, I will say that I profoundly disagree with virtually everything you heard from Mr. Gallagher. However, we are not here to debate the merits of the system. If you wish to pose questions, I would be quite prepared to respond to them.
First, I want to say that I am speaking with three hats tonight. I am speaking as the former chairperson of the IRB at the time when the Immigration and Refugee Protection Act was implemented, including the creation of the Refugee Appeal Division. You may ask any questions you have about it, and I can correct some of the comments made earlier. If you want to understand what the Refugee Appeal Division is, I would be pleased to explain it to you.
Second, I want to speak as a former member of the Immigration and Refugee Board. I listened to refugee claims for six years. I have heard hundreds of claims, both as a single member and sitting on two-member panels. I can assist you in regard to the differences between a single-member and a two-member panel.
Last, since 2002 I have worked as an academic, comparing the Canadian refugee system to other refugee systems in the world, in both developed and undeveloped countries. If you would like any assistance, I would be prepared to speak to that as well.
I have already provided you with written notes, which are long and technical. Of course, I will not go through them in detail. I thought I would touch briefly on five points. Those points are principally elaborations or explanations of the testimony that was given to you by the government witnesses two weeks ago. There are some areas where I think they are correct and some areas that certainly require clarification. That is what I will address. I will be brief, as best I can, and I will also not repeat points already mentioned to you by the previous witnesses.
The first point is the notion of single-member decisions. Mr. Graham did tell you that the difference between a two- member decision and a one-member decision is minimal. He said that was for two reasons. First, there was dissent in less than 1 per cent of the board decisions, so two-member panels always decided unanimously. Second, he told you that in the year before the new legislation — in other words, in 2001 — 58 per cent of board decisions were made by single members.
Based on those two facts, he drew the conclusion that there really is no difference between having a single-member panel and a two-member panel. Both of those facts are correct, but his conclusion, unfortunately, is not.
I will briefly explain. Even though only approximately 1 per cent of board decisions had dissent, there were far more two-member panel decisions where there was disagreement between the members. At the conclusion of the hearing, if there was a unanimous positive decision, then it was unnecessary to write reasons for the decision. However, if there was a dissent between the two members, then both members were required to write reasons. Reasons were seen as laborious and difficult, but it would not result in any difference in the decision, because the presumption was that the positive decision prevailed where there was a split decision. The situation was that a lot of work was created for yourself and your colleague, for no tangible result. Consequently, the only time members dissented was on a very serious point of principle. The inference that because there was only a 1 per cent dissent rate there was therefore no disagreement on other decisions is incorrect.
More important to understand, though, is that where two members are unanimous, the presumption is that they got there by two separate parallel tracks. That is not how two-member decisions were made. They were team efforts. Members discussed before the hearing. They discussed the issues and the evidence, and they consulted and assisted one another. When you received a unanimous decision at the end, it was a product of two thinking minds instead of one mind.
That became particularly important when there were new members. The presumption was that it took about six months to become a fully competent member, so the new members were paired with strong, mentor members.
Second, because of the appointment process, there was, unfortunately, a significant minority of weak members who consistently made inappropriate and inaccurate decisions. For those members, it was very important to have another member sitting with them. Please understand what it means now to have single-member decisions. That single member is sitting in a room by themselves, without any assistance other than possibly a refugee protection officer, reaching decisions. That is why I have frequently said that there is no doubt in my mind that single-member decisions lead to more mistakes.
When the legislation was drafted, I was the one who advised the House standing committee and also the Senate committee, which was chaired by Senator Kirby then, that the combination of single-member decisions, even though they would cause more mistakes, was still a more efficient and fairer system because of the Refugee Appeal Division itself. Afterwards you can ask me exactly what that is.
I want to correct a couple more statements made by the government witnesses. The next point is judicial review. There has already been an explanation for why judicial review is different from the Refugee Appeal Division, but the principal reason is this: In front of the Federal Court there is an application for leave process. You have heard that only 10 per cent of applicants get leave. In actuality, over the last five years, it has been between 9 per cent and 17 per cent. We ordinarily talk about an average of 12 per cent or 13 per cent. That means 88 per cent are not getting leave.
The real problem is that when a leave decision is made, no reasons are given. There is no explanation given by the court, so we do not know why they turned the decision down.
My centre is undertaking a study of those leave decisions and trying to do a statistical analysis. We know that 40 per cent of the decisions do not have adequate evidence presented to the judges. I have personally spoken to many of the judges. They are frustrated because they have to make a leave decision on inadequate evidence.
My real concern for the Federal Court is not that there is a difference between judicial review and appeal, but the real issue is this triage process that screens out many cases that may have a lot of merit, and there is no way of knowing how many valid claims are screened out.
The other issue is the pre-removal risk assessment. Mr. Graham told you that, in actuality, because there was new evidence, it was the same as an appeal or more. I hope you have heard the previous witnesses. It is not an appeal because they do not look at the old evidence. They do not go back and look at what the board decided. They only consider new evidence. The PRRA was conceived as being the last stage after the Refugee Appeal Division. The Refugee Appeal Division would figure out whether or not the IRB got it right. If the IRB did not get it right, the PRRA could correct the decision and overturn it or, if there was a need for more evidence, send it back. The PRRA was intended to figure out at the end if someone had a new risk they were going back to. It is a completely different process, and it does not operate in the same way.
If there is a criticism of the system, it is that there is the first level decision. After that, there is a combination of the leave process to the Federal Court for judicial review, there is PRRA and there is the humanitarian and compassionate review, but none of those deal with an appeal. The real criticism of those processes is that they are not a substitute for appeal and they all take a tremendous amount of time.
I mention the issue of time because you have heard from all the government witnesses repeatedly that the Refugee Appeal Division is another layer on the cake adding anywhere from three to five months in the process, and it is extending the time more. Time and delay are already a problem.
You will find in your documents that I have actually broken down the five stages of the refugee claim process, giving you particular numbers. I will not go through it now, but I will tell you that this is one area where I think Mr. Gallagher and I agree. I do not know of any refugee claim system in the world, including all of the developed countries, that can tell you how long a refugee claim takes. By ``how long,'' I mean from the date the claim is made to the date of removal. However, that is the date that is relevant. If people are legitimately concerned about not encouraging false refugees and manifestly unfounded claims, the way to do it is by fast processing.
The Canadian government is no better or worse than many others with respect to this, but there are all kinds of dead spots in the refugee claim process that the government does not acknowledge. That is why I provided you the stages.
As you heard from another witness, after the Federal Court decision is made, the PRRA stage takes nine months. She did not tell you when that PRRA stage starts. I can tell you that it starts when the PRRA officer sends a notice, and there can be one, two or three years between the end of the Federal Court process and when that notice is sent. That nine-month period starts when the notice is sent. There is dead ground in there.
If you paid attention to what the Canada Border Services Agency witness said, she said the removal process is two and a half years. Subtract nine months from two and a half years, or 30 months, and you have 21 months of dead time that is not acknowledged, not referred to and cannot be tracked in the process. That is the principal and egregious problem.
I suggest to you that probably two years of this whole claims process could be removed by a strong commitment to increased resources and efficient removal at that stage.
You can ask me more questions about that, but I wanted to talk about time. It is difficult to hear members of the government talk about their great concern about this added four or five months. There are many areas where they have added time that has simply gone unacknowledged. That is a major issue.
When it was conceived, the Refugee Appeal Division was not only to be an added layer for fairness, which is important, but it also had a secondary role. That role was to accomplish two things. First, it was to assist the Refugee Protection Division, the first level, to make better and more consistent decisions. You can ask me about how that works, if you wish. It relates to this issue of three members as opposed to one member in the Refugee Appeal Division.
I can tell you about the second thing it was intended to do because, although I do not want to disclose cabinet privilege, I was directly engaged with all the debates and policy discussions about how and why the RAD can work. By the way, one area where my colleague is incorrect is that there is no expedited process from an immigration officer. That is within the board. It is a board function; it does not occur outside the board.
At the time of those discussions, the Department of Citizenship and Immigration, the minister and everyone else understood that that mistakes can be made at the first level because it is difficult to make refugee decisions. As a board member, I can make a mistake and so can anyone else, particularly sitting as a single member. The greater problem is where you have weak members who are not fully competent who make far more mistakes.
The issue is that if you are to remove someone, you need a review of that first decision. The reason you need it is not just to be fair. If you want to remove someone with confidence, you want to be sure that you had it right the first time. That was the purpose of the Refugee Appeal Division. It meant you could not, unfortunately, avoid Federal Court. Under common law — I think every lawyer in this room understands this — judicial review can be narrowed, but it cannot be avoided.
With the RAD, the Federal Court judge at the leave stage would have not only the IRB decision, with or without submissions from counsel, but also a second decision; and if the Refugee Appeal Division has done its job, that decision is a clear and concise statement about why the first members had it right. The whole point of having that was that, at that point, you could move negative claims through the process quite carefully and quickly. The court was more confident in making those leave decisions.
The only cases that would go to the Federal Court for full judicial review were ones with complex issues of law or evidence where you really needed court jurisprudence. The same went for the PRRA officers. The notion was that they would only have to be concerned with new risks. They would not have to be concerned about whether or not a case was messy.
I am open for your questions.
Senator Di Nino: Welcome to our witnesses. You have opposing views, which is good; it makes us think. I appreciate that.
Mr. Showler, you have made a very impassioned presentation. We respect your knowledge and understanding of this issue. You understand it much more than I do certainly, and probably most of us here.
Why have the last five immigration ministers told us that we should not implement the Refugee Appeal Division provision, at least not at this time? Nobody has said that they will not.
Mr. Showler: Actually, some have. Certainly some deputy ministers have. Minister Sgro said that the view is that they want to reform the entire system.
If you ask me whether the way the Refugee Appeal Division works now is the best system, the answer is no, it is not. There are better systems. I would welcome that debate and change.
However, what you have to confront now is that we have the worst of both worlds. I think mistakes are being made by single board members that are not being caught by the system. Minister Coderre, the first minister to postpone the implementation of the Refugee Appeal Division, made it clear that the postponement was to be for one year while they addressed the backlog. I was the chair at that time.
My concern is that mistakes are being made within the system. It is costing a lot of time, money and a tremendous amount of misery. It is not just an issue of delay. We have a project right now dealing with sanctuary cases and refused claimants who have been lost in this limbo. A significant number of them have family overseas. Now you are looking at three, four or five years of family separation. Some of them cannot actually go back. At the same time, the family is there. There is tremendous uncertainty.
Sure, if you want to reform the system, that would be great; but nothing has happened. It has now been six years. Those serious reforms to the system are still not on the horizon. While we continue to dither, suffering happens. That is my concern.
I am legitimately trying to be here as a witness to provide you with information. However, I would welcome a very thorough discussion of the system. In that sense, Mr. Gallagher and I may not disagree. I believe in one good decision, a good second decision and then prompt removal. Unfortunately, we do not have that. We have one reasonably good decision. By the way, the Canadian system is the only one in the world that has a quasi-judicial decision at the first level. We have a reasonably good first decision, but after that, we do not have a good means of catching those errors.
The other problem we have is that it dribbles on forever. I would challenge the immigration department to say exactly how long the entire process is. We are talking about years. It is a waste of resources.
Senator Di Nino: You still did not answer my question.
Mr. Showler: The answer is to ask those ministers.
Senator Di Nino: Five of them — three from the Liberals and two from the Conservatives — have said that we do not need this particular provision at this time. Obviously they disagree with what you are saying; I did not ask them that. They are either insensitive or ignorant of the facts.
Mr. Showler: I would not say that. They may be insensitive to the difficulties of making refugee decisions, and they may be somewhat unaware. They are at the top of a very large pyramid, and not an easy one to work with. That is why you have heard from Amnesty International — the people who see the results and damage being caused by the lack of an effective review of those first-member decisions.
Senator Di Nino: If we pass this bill, do we still need the pre-removal risk assessment?
Mr. Showler: If you do the RAD decision promptly and do prompt removal, you would not need it. The original legislation conceived — and it was taken out — that you could promptly remove, within three months, without use of a pre-removal risk assessment. There was that three-month deadline. That makes all the sense in the world to me.
Mr. Gallagher: At the same time, we must realize that when that was closed down we received something like 45,000 claims in 2001. The government was concerned it would go to 55,000 claims and higher.
At some point, the question is whether a tribunal setting, an independent board, can manage a high flow rate in the time it takes you to accomplish what other countries do in six months? That is a question Canada has not solved. From the beginning, the IRB has not been able to finish its work within a year. This is 20 years.
Senator Di Nino: This is not a debate.
Mr. Showler: Other systems do quick decisions up front with various forms of immigration officers; they are administrative-type decisions. However, every one of those countries — Belgium, Holland, Germany and France — have complicated review processes.
You have just heard that 165,000 cases is the case load at the Board of Immigration Appeals in the United States. It used to be 365,000. The fact is they do not have systems that work very well either. They are all struggling with the question of how, once refugees come to the system, to bring it to a conclusion. They have not been successful in that regard.
Mr. Gallagher: In the United States they put in a six-month legislative limit and reach it in 90 per cent of the cases. They have something called the LIFO — last-in first-out. In other words, there is a massive backlog, but that has been there and those people are slowly being assimilated, I suppose. Ultimately, the people who arrive are being dealt with very quickly.
If the United States had a system like Canada, would they have 50,000 claims a year? Canada will probably receive about 35,000 claims this year. The United States receives 50,000 claims.
Mr. Showler: Two years ago they had 86,000. What Professor Gallagher is not telling you is that that is at the immigration judge level. He is not telling you about all the other phases.
I come back to you and challenge any policy-maker. The real question is when do they claim and, for negative decisions, when are they removed. The United States has a terrible record in that regard. They have not been successful. They have two levels of review after that, plus Federal Court.
You can trust me on this: there is not a developed country in the world that is doing a good job of it right now.
Senator Di Nino: I thought ``You can trust me'' is only for politicians.
RAD is an appeal process. Section 73 of the legislation, which has not been proclaimed, would give the minister the right to appeal as well. Do you think the minister should proclaim that section if RAD is approved?
Mr. Showler: Yes. Mr. Graham said it could be implemented at the same time. There is nothing preventing the government from doing that.
I think it is very valuable. On certain decisions the minister does want to challenge these cases. Remember I mentioned the three-member panel? One thing to clarify, in terms of refugee appeal, is that it is a section of the Immigration and Refugee Board. It is not an administrative process; it is quasi-judicial. The members will be appointed by cabinet. It is a paper-review process, but there will be arguments in front of the members. It being a paper review does not mean that a lawyer cannot come in and make arguments on behalf of his or her client. That will occur. What will not occur is new evidence. That was put in place because — Mr. Matas was correct — the concern was time.
If new evidence could be presented, the concern was you would completely repeat the first-level process and you would be looking at another 14 months. That was unacceptable.
What the Refugee Appeal Division can do, particularly if there is an appeal by the minister, is appoint a three- member panel instead of one member. Not two members: it has to be one member or three. With the three-member panel they are far more formalistic; they do a thorough decision, and that decision is binding on the Immigration and Refugee Board. It is a means for the minister to clarify issues around some of these countries so there is binding jurisprudence. It is something we do not get from the Federal Court, and eventually it speeds up the process and improves the quality of decisions.
The Chair: Just to follow up for clarity, you say lawyers could appear to argue their case. We heard from previous witnesses who said they would be sitting somewhere and reviewing the paper flow.
Mr. Showler: That is because they did not understand the process. I am sorry.
The Chair: The Refugee Appeal Division has not been set up, so we are not sure what the rules will be. Presumably they will have their internal rules.
Mr. Showler: The rules have been drafted. The entire implementation process went to April, and it was at the last minute the minister decided there would be a postponement. The RAD was intended to be a full division of the board.
The Chair: Somewhere there may be some drafted rules. I am saying they are not in the act. We do not know whether they will be there.
A simple reading of section 110 leads you to believe that the appeal division would review the record and may accept written submissions. It does not talk about appearances. Is your interpretation that they could make representations in person?
Mr. Showler: Yes. Another section of the act applies to all of the four divisions of the Immigration and Refugee Board. That is where you will find the provision that there is an authority to hold hearings. Unfortunately, the way the Immigration and Refugee Protection Act is drafted, there is no provision that says, ``Here is how the Refugee Appeal Division works,'' but there is a common provision.
The Chair: That would lead me to believe that people would want to appear before that person to put their persuasive arguments. The implication would be that there would be representations because that would be the best way of making one's point.
Mr. Showler: Yes, but not witnesses.
The Chair: The lawyers would be there.
Mr. Showler: Yes.
The Chair: I think of courts of appeal and sentencing provisions.
Senator Dallaire: Mr. Gallagher, you certainly come across as a pragmatic person in regards to the impact of a process on resource allocation and also vulnerability of the system. I think your comments regarding policy disconnects are most appropriate.
In your review, did you get a feel for what impact the introduction of the RAD might have in terms of costs, delays, process and also costs due to the fact that more people will be held in the system longer? Were you able to get a gut feeling about that with all the other data you have on the process?
Mr. Gallagher: In my opinion, if you were to follow and put up a good system, you would have to have an appeal on the substance. Look at what the Common European Asylum System is putting together — what the Europeans are developing as a harmonized system. It includes a first instance, an appeal on the substance, a judicial review; it is all there. I think we have to move to that as a full reform.
My problem with the RAD is that you are throwing it into a system that is already disorganized, has all kinds of end runs, is incredibly complex and can be played. Ultimately, my problem is not with the need for an appeal on the substance. My problem is throwing the RAD into the existing system. If you are to have a RAD — and I think an appeal on the substance is needed — you have to start on a clean page.
Regards costs of the RAD, when you add five months to the existing system, you are automatically way beyond what any country does in terms of refugee protection. The U.K. has a target of 60 per cent of cases completed, first instance in appeal in six months. That is the contemporary situation. They are targeting their new system in 2009 to grant or remove 75 per cent of the case load within six months.
You have to have time targets. Otherwise, you will get people seeking a migratory opening. You are presenting a migratory opportunity, especially on the screen side. Canada does not have a manifestly unfounded policy, nor a safe country of origin, nor an effective safe third country policy. It really is an open system for the type of people who want to migrate, a mixed flow who want to set up a new life in Canada.
Senator Dallaire: I want to set this in circumstances. It is interesting that this was passed in 2001 when we had 9/11 and so on. Also, the international scenario is far more complex and ambiguous, with imploding nations. There is more of a demand out there for being able to emigrate to or be a refugee in a stable, liberal democracy. There is an increased demand, but at the same time a massive amount of money has been invested in security to prevent people from illegally entering, at least.
I come back to your argument again about the cost and pragmatism. It has been seven years now. Who knows how long it took to bring it to law. I do not have that data. Beforehand, the requirement was stated, I believe, in 1985.
Mr. Gallagher: There was a whole process of decision making, including numbers, a review and a white paper.
Senator Dallaire: We have 20-odd years of manoeuvring. We had that law in 2001, and 8 years later, we do not see a massive reform coming down the road. We see a change coming but not a massive reform.
I agree with the resource base, but we still have human beings who are not necessarily receiving the full, possible opportunity of being reviewed that the RAD would provide.
Is there not a disconnect between the human responsibility of fairness and the cost? Without seeing a major reform coming down the road, would it not be responsible and consistent to try to make a process as fair as possible by trying to introduce this?
Mr. Gallagher: There is a fair process on one side that requires a complete rewrite. Then there is the short-term desire to add an appeal on the substance. That, to my mind, throws another wrench into the system.
The system is so slow, and so few people are removed at the end of the day, relatively speaking, that you are not likely removing people who would face persecution. At the moment, the largest influx of immigrants is Mexicans; 7,000 Mexicans made asylum applications last year. They are followed by Haitians, Colombians and Americans.
The Canadian system has embarkation controls such that the type of people who arrive in the United Kingdom, for example Afghanis, Iranians, Zimbabweans, Chinese, Iraqis, do not make it to Canada anymore. Essentially, the Canadian system has set up barriers to the movement of public. If you can arrive, often it is because you are not coming from areas of persecution.
In a sense, until we can re-establish our system to make it fair and just from front to back, it is a system that can be played. That is my concern. People who come from countries where persecution is prevalent are most likely expedited anyway.
Senator Dallaire: I agree that on the one side you want the reform and on the other side you do not want to add a problem. In the middle of all of that, you still have human beings caught up in a process. Half a loaf is better than no loaf, so to speak.
Again, it would weigh in the positive sense to introduce the RAD until we have politicians who have the guts to really reform the outfit and bring it forward.
However, I come to the argument about process versus efficiency. The Canadian Human Rights Commission had a terrible reputation for backlogged processes, and it brought in significant internal changes that were able to get rid of that backlog. It is now efficient.
Do you not think that, although we are introducing this, there could be significant internal reforms to be done within that department that have not been initiated because they too are waiting for the big change?
Mr. Gallagher: It is possible. In the past when there was a big enough backlog, they had a backlog clearance exercise. Back in the 1980s, almost 120,000 people were given permanent resident status on reduced criteria. If they are in the country this long — say four or five years — it is very difficult to remove people.
In a sense, you are not talking about removals of people who would go back to persecution. I do not think you will see that at all. What you will see is more confusion. There will be requests for amnesty and more court cases. Ultimately, the whole process will become more disjointed and more confused.
Senator Dallaire: I will leave it at that on the first round.
Senator Poy: Mr. Showler, you were a board member, and you were there listening to refugee claims, both as a single member and as part of two-member panels. What happened when there was total disagreement in a two-member panel?
Mr. Showler: If there was total disagreement, it would be a dissenting decision. Both members would be required to give the reasons for why they supported either the positive or negative. However, the refugee claim was accepted because it was in the immigration act at the time that where there was a split decision, the positive decision prevailed. As I explained earlier, that is why in most instances members would not dissent unless they had a very serious issue on principle.
Senator Poy: In 2001, you were involved with the drafting of the legislation.
Mr. Showler: That is correct.
Senator Poy: Did you suggest a better RAD than what is in the legislation that we are trying to have implemented? It is the same document that will be reviewed instead of having a better appeals system.
Mr. Showler: It is correct this was a substantive review. I suggested something considerably more than that. However, at the time, some people did not want any kind of Refugee Appeal Division at all. The same kinds of arguments you have been hearing in regard to this bill were being raised then.
The Refugee Appeal Division was a compromise and the compromise was built around time. That was the issue. The concern was that the average time for refugee claims was 14 months at the Immigration and Refugee Board. Then you have the subsequent process that occurs as well. The government was quite clear that they did not want to repeat and add on another 14 months.
Senator Poy: With respect to the PRRA, you said it would take approximately two years for removal of failed refugee claims.
Mr. Showler: No, that was another witness, Ms. Kramer, who came before you two weeks ago. I read the proceedings and she made reference to two and a half years for the removal process. That was her language. I do not have access to that information.
Senator Poy: If RAD were implemented, we have been hearing that it will add approximately five months to the hearing. If that were the case and we got rid of PRRA, then it would actually take less time. Is that correct?
Mr. Showler: It would. You cannot avoid the application for leave process to Federal Court. However, as I said, if the RAD does its job — and that means that you actually have a RAD that is functioning correctly, with competent members who can write a decision of four or five pages stating why the board was correct in the first place — in my view, having been involved with the Federal Court quite a bit on these issues, many judges would be far more comfortable denying the leave application. The leave application takes only 45 days. Theoretically, within two months after RAD they could pass the Federal Court stage and the leave stage. At that point, there is nothing preventing removal. I encourage the federal government to do it as soon as possible.
Senator Poy: You also mentioned with respect to the RAD that it is either one member or three members sitting in judgment. When would the decision be made about the number of members?
Mr. Showler: The deputy chairperson would be the chairperson of the Refugee Appeal Division. He or she would have the authority to select certain cases, usually where there would be jurisprudential value. You would hear the same case again and again and you would try to frame case law jurisprudence that would be binding on the first level. That was the intent.
Senator Poy: From your presentation and your remarks, Mr. Gallagher, would you consider the legislation from 2001 to be inadequate?
Mr. Gallagher: It is inadequate because it did not bring forward the recommendations of the report that was given to the minister that argued for the movement towards public servants doing the first instance of determination. That would have sped the whole process up.
If that were the case, then you could have an appeal on the substance by an independent board and then it could go quickly and you would not need a PRRA. When you have your first instances done in a tribunal setting, it is a difficult process to organize. It takes a long time. Canada has not been able to do that in under a year. As a result, if you are taking a year to do your first instance of determination in a tribunal setting by an independent group, by the time you get to your appeal stage, you are already a year and a half into it.
A witness before the Standing Committee on Citizenship and Immigration put the time at five months. Add five moths to that. If the leave to the Federal Court is another month, you are six months out. Basically, that will require a PRRA. The PRRA deals with new circumstances and the changing time. If it is six months, then you can make a case for a PRRA.
With the American system, you have your first instance by a public official. If the public official cannot reach a decision, then it is forwarded to an immigration judge. The immigration judge holds the hearing on asylum in the context of a removal hearing. If that individual cannot make the case, then that person is essentially ready for removal. The person can appeal today to the Board of Immigration Appeal in that state, but the number I have is six months. Once that is done, it is done. You can appeal it to the court, but there is no legal aid in the United States. Essentially, there is a resource question. Are you willing to pursue it? Most Americans become undocumented.
Mr. Showler: The Immigration and Refugee Board has repeatedly said that it is capable of making decisions in six months. The current chair has said the same thing. The extra time between six months and 14 months is because of the backlog within the board itself. It is inventory that is sitting there. The board was down to 17,000 two years ago. If they have an inventory of 17,000, it can make decisions on average of six months; for urgent cases, they can do it in three. There is a capacity to do that.
Mr. Gallagher: In 20 years, I do not believe the board has ever accomplished that.
Mr. Showler: The board was only created in 1989.
Senator Lovelace Nicholas: My question requires a simple yes or no answer. Does a refugee ever need a lawyer to plead his case? If so, is one appointed for him or must he obtain his own?
Mr. Showler: Yes and no. In my view, the answer — and this is very controversial — is that in many instances the refugee does need a lawyer. It is a refugee definition and a legal definition. It is technical. The evidentiary problems are significant. Some provinces provide legal aid; some do not. It is not simply about a bad or inaccurate decision made by the board. Sometimes, it is the fault of counsel.
Of course, consultants can appear before the board. On the part of some counsel, both lawyers and consultants, their role has been reprehensible. Remember that all the evidence is somewhere else in another country. Senator Dallaire understands this very well. All of the events happened somewhere back in a certain region and you must figure out whether or not the testimony is correct. The decision takes place here. Sometimes, a lawyer is critical to the role.
The Chair: I have quick questions for both professors, the first one to Mr. Showler. In your paper, you seem to talk about the occasional error in judgment, which is human. However, you say that more frequently there are chronic errors by persons who lack questioning or reasoning skills and have unexamined biases.
I think we would address that problem not by getting an appeal board but by ensuring that we have properly trained people. We do not remove judges and cause an appeal maybe on unexamined bias or that they lacked whatever skills. You do not use an appeal system to correct the unprofessionalism or the lack of qualifications of members. Would you not do that by creating an appointment system that is valuable? It seems to me you want trained experts. You said it was quasi-judicial. I am curious. Are you going to an appeal board because you have incompetence? I am lost.
Mr. Showler: There is much to say. As the chair, I had vigorous discussions with the government over the reappointment of some members that, in the view of the board, were inadequate. They were reappointed in any event. Remember that you do not have to be a lawyer to be appointed to the board. About 35 per cent are lawyers. Sometimes some of the weaker members on occasion are lawyers, but usually it is the opposite situation. That is the appointment system in place. It is hard to challenge, as any experienced politician knows and understands. The board has excellent training, but some people do not do the job well.
I said in my paper that one of the ways the board buffered the damage those members could do was to pair them with strong members, and all the benefit of that buffering has been lost.
There has been consistent improvement in the appointment process. When I was first a member, it was horrendous. Outrageously inappropriate appointments do not happen anymore. Everyone has to go through a merit-based assessment. There has been improvement, but there are still weak members on the board. I regret to say that, because most members are hard working and competent, and I do not like to stigmatize them because of a few members.
The Chair: Professor Gallagher, you began with a point that continues to trouble me. We rely on the UNHCR system. There are people sitting in refugee camps, with probably no possibility of ever going back to their own home environment, and they follow the rules. They are there year in and year out. What can we do for them? As you said, we talk about those who make it to our shores. However, I saw many refugees accepting of an international system and hoping against hope that they could have some stability and security in their lives, and they are still in those camps.
Mr. Gallagher: It is a very difficult situation. Australia took a very robust view on this. They said that when an asylum seeker arrived, they would cut back by one the number of people taken from the camps. They set their limit at 14,000, and if 7,000 asylum seekers arrived, they only took 7,000 resettlements.
Canada takes about 10,000 resettlements a year. The government has denied this over the years, but Canada could probably be more generous if it were not faced with an onerous asylum-seeking influx.
During the period when we were taking large numbers of Indochinese, we were very generous with resettlement prior to the advent of large numbers of asylum seekers. There might be a connection there. Certainly the Australians see a connection, although Canada historically has not. In terms of resource allocation, it is not a very transparent system of spending.
I can come up with about $500 million spent in the in-country process, and I am sure that is very low. In the British system, for about the same number of people they spend about $1.4 billion Canadian.
We give UNHCR about $35 million for their work in the camps. Arguably, if Canada was not faced with an influx of asylum seekers, that might have worth. Perhaps we could do more about resettlement from camps from various regions of the world.
The Chair: Professors, you have generated debate and a lot of thought. We thank you for your presentations.
The committee adjourned.