Proceedings of the Standing Senate Committee on
Human Rights
Issue 6 - Evidence, June 2, 2008
OTTAWA, Monday, June 2, 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 5:03 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 evening to address Bill C-280, An Act to Amend the Immigration and Refugee Protection Act, coming into force of sections 110, 111, and 171.
We have on our first panel, representing the Quebec Immigration Lawyers Association, Mr. Stéphane Handfield, Vice-President; and also on this panel, as an individual, is Mr. Max Berger, an immigration lawyer.
Max Berger, Immigration Lawyer, as an individual: Thank you for hearing from me. By way of quick introduction, I am an immigration lawyer with offices in Toronto and Montreal. I have been appearing before the board regularly since the year of its inception in 1989. Over the past two decades I have represented several thousand refugee claimants in their hearings before the board. It is from that body of experience that I bring forward these comments to you.
My view is that the RAD, the Refugee Appeal Division, should be implemented because the RAD is a merit-based appeal which is a necessary component of any proper refugee determination system. I am also of the view that the RAD should be hearing new evidence. If we are to give claimants the opportunity to present new evidence prior to removal, as we currently do under the Pre-Removal Risk Assessment system, PRRA, it makes much more sense for the RAD to pick up that function since they already will be hearing the appeal on the merits. If that is done, then the PRRA program, with its 97 per cent refusal rate, can be abolished. In my view, the PRRA serves no useful purpose.
The best scheme I can imagine is once the Refugee Protection Division, RPD, renders a negative decision, the Canada Border Services Agency, CBSA, will thereupon begin tentative removal arrangements, making sure a claimant has a passport or travel document available so that once the RAD renders its decision, if it is a negative decision, then the claimant can be removed within 30 days — not after years and years, which is the current system today.
The thrust of my submission to you this evening will be that the RAD should be implemented, but not until the RPD puts in place certain procedural changes —
The Chair: Mr. Berger, since the committee is being televised, could you explain for our listeners what the acronyms you are using stand for? I apologize for interrupting.
Mr. Berger: Certainly; the RPD, which is the Refugee Protection Division, is the division of the board currently in place that adjudicates upon refugee claims. The RAD, the Refugee Appeal Division, is what we are here to discuss today. We are trying to decide whether or not it should be implemented. The PRRA, the Pre-Removal Risk Assessment program, is also currently in place today. That is a program whereby the Immigration Department will give a claimant a last opportunity to present new evidence.
Where I left off, I was about to say that the thrust of my submission to you this evening will be that the RAD should be implemented, but not until certain modifications are made to the RPD to discourage the flow of bogus refugee claimants coming to Canada. We have seen, over the last several years, a large influx of bogus claims. The acceptance rate in refugee claims in the first year of the board's operation in 1989 was 88 per cent. That has dropped incrementally where, for the last several years, it has been under 50 per cent.
My fear is that if we do nothing, the newly implemented RAD will be overwhelmed by bogus refugee claims. We should be taking steps to discourage bogus claimants from coming to Canada, while leaving the door wide open for genuine claimants to come here.
I would like to quickly review two cases from my own case histories to illustrate the points I want to make. I then want to go over the most recent statistics of acceptance. I have provided a two-page handout to you to give you an idea what the caseload of the RAD might be if it is implemented now. Finally, I want to leave you with four recommendations that I believe the RPD and the government should put into place before the RAD is established.
A woman from Iran named Fatima Fazlinasaab was my client about 11 years ago. The reason I can give you her name is that after the board refused her case, she took her claim and her case to the media, and the Toronto Star published four or five articles, which more or less embarrassed the Minister of Immigration into letting her stay in Canada.
Fatima was in my office and for 45 minutes told me, in graphic and intimate detail, the torture that she endured physically and emotionally in her native Iran. When you hear such a story from someone who genuinely has been persecuted, it is something that does not leave you; it stays with you the next day, the next month, one year later, ten years later.
At her hearing, the two-member panel hearing her case decided they did not want to hear oral evidence from Fatima about her persecution because they had a detailed statement. They made a negative finding of credibility against her, without giving her the chance to present oral evidence about her persecution, which went right to the heart of her refugee claim.
It was a terrible and shocking decision, made more so because it was the worst case of persecution that I have ever heard about in my career as an immigration lawyer, and the board refused her case. Had it not been for the Toronto Star and a brave journalist, Ms. Michele Landsberg, coming to Fatima's rescue, she would have been deported back to Iran, where the regime would have finished her off. This is a classic example of why a refugee appeal division is necessary.
I will tell you about a very different case, which is about a woman named Lul, from Somalia, who came to the border with her 2-year-old child. The immigration officer was suspicious of Lul because of her dress and her demeanour. The officer did not think that Lul had come directly from Somalia as she claimed. I saw Lul in my office and I remarked to the Somali interpreter that Lul had the most beautiful 2-year-old boy I had ever seen in my life.
It took a year and a half for Lul to have her hearing, which was routine, and she was accepted. A few days later I ran into the Somali interpreter who asked me what happened. I said that Lul was accepted. The interpreter asked what I thought of her son. I said that the boy was at the hearing and he was a funny-looking, rather unattractive kid. The interpreter reminded me that a year and a half ago when Lul first came to see us, I had remarked that her son was beautiful. The interpreter laughed and said, "Mr. Berger, let me tell you the real story of Lul. She was born in Somalia but when she was a child, her parents moved the family to Sweden. She grew up in Sweden, became a Swedish citizen, married and had a son.'' A domestic dispute with the father occurred and she decided to come to Canada with her son and make a refugee claim. Prior to the hearing, Lul had to send the boy back to Sweden because apparently the father wanted to see the child.
The time for her hearing arrived and, knowing she had to show up at the Immigration and Refugee Board with her child, she simply rented a child for the afternoon from the Somali community; and she passed her case.
These two cases show two things: In the case of Fatima, how easy it is for the IRB to make a mistake, which could have been tragic; and in the case of Lul, how easy it is for a refugee claimant to fool the Board. That is because the IRB does not ask the right questions and does not make the right inquiries. I will come back to those questions and inquiries in a minute.
First, I will review with the committee the most recent acceptance statistics of the IRB to give you an idea of what the caseload of a refugee appeal division might look like if we were to implement one right away. I have provided a two-page handout to the clerk. I remind senators that when the IRB was created in 1989, in its first year of operations the acceptance rate was 88 per cent. The handout I have given you is for the year 2007: 5,885 accepted; 5,423 rejected; and 735 abandoned. That is an effective acceptance rate of 49 per cent, or an effective refusal rate of 51 per cent. Not even the most ardent refugee advocates are suggesting that all or most of that 51 per cent figure were incorrectly refused by the Refugee Protection Division — perhaps 10 per cent or 15 per cent. Anyway you look at it, the overwhelming majority of 51 per cent were correctly refused by the RPD.
My concern is that doing nothing to stem the flow of bogus refugee claims will cause it to flow into the RAD and, just like weeds crowd out flowers in a garden, the RAD will soon be overwhelmed by a large volume of bogus refugee claims that were correctly refused by the RPD. Therefore, it is my view that we take steps at the RPD to discourage bogus claimants from coming to Canada in the first place. I would like to leave senators with four recommendations. I remind you that if a RAD is implemented, there will be two closely linked divisions. The efficiency of one division will depend on the efficiency of the other division.
If my four recommendations were implemented, I would be satisfied in having a RAD come into effect right away. First, however, we need to ask the right questions. Currently, the RPD focuses on whether the claimant was persecuted in the home country. Of course the RPD should look at that, but we never know this with any degree of certainty. However, we can determine with some degree of certainty whether the claimant was in the home country when they allege these incidents of persecution occurred, or if they had been long gone, as in Lul's case.
The most common form of misrepresentation at the IRB is by claimants who do not come directly to Canada but spend many years either in the developing world or in European refugee-accepting countries. As well, we need to ask the refugee-accepting countries in Europe whether the claimant was in one of those countries before coming to Canada.
The second point pertains to passports. It still amazes me that, after two decades, the IRB is indifferent to whether a claimant produces a passport at the hearing. People in a country with uncertain status have good reason to hold on to their passports because they might have to leave at a moment's notice. A passport shows the date when a person left the home country. In my view, there should be two extremes of adjudication in the RPD: A stream for those who can demonstrate when they left their country, and a more rigorous stream for those who cannot do so.
The third point pertains to fraudulent documents. Unfortunately, there is too much traffic in fraudulent documents before the IRB, such as fraudulent police reports, medical reports and letters from political parties confirming membership that are used by bogus claimants to establish bogus claims. At times, these documents are sent for verification to the claimant's home country. When they come back as being fraudulent, the consequence is a simple refusal of the claim. That is the only consequence — there are no charges, no prosecutions. Such criminal activity, if there are no consequences, will simply be repeated. In my view, if there were prosecution of those kinds of activities, they would cease and the bogus claims would end.
On the fourth point, I would ask senators to look at the handout where they will read that in 2007, more than 27,000 claims were referred to the IRB. At the second page, you will read that Mexico was responsible for more than 7,000 of those claims. Fully 25 per cent of refugee claims to Canada come from that evil empire to the south, Mexico. Mexico has a very low acceptance rate but we see so many Mexican claims because the Safe Third Country Agreement has a special exemption for Mexico. The door is slammed shut upon claimants from most other countries of the world. Mexican citizens are very nice people, but they are, by and large, economic migrants. The door is open for them, so they walk through that open door. The fourth recommendation is for a visa requirement on Mexican nationals that will end those types of claims.
To conclude, the proposals I am putting to you I believe would result in the majority of the caseload of a newly created RAD dealing with claims that were inadvertently and incorrectly refused by the RPD. If these proposals are not implemented, I fear you will see an overflow of a large volume of bogus claims that were correctly refused by the RPD. Those people will simply pitch their tents in the RAD and overwhelm the resources of this newly created division.
Thank you for enduring my submission.
The Chair: I assure you that it was not a case of "enduring.'' We find that the question and answer period is very helpful. I want to leave time for that and equal time for Mr. Handfield.
[Translation]
Stéphane Handfield, Vice-President, Quebec Immigration Lawyers Association: Madam Chair, thank you for your invitation, giving me the opportunity to share with you some comments with regard to the Refugee Appeal Division. I am a lawyer, and I have been a member of the Quebec Bar since 1992. I mainly practice immigration law. I was for 11 years a commissioner with the Immigration and Refugee Board and I am Vice-President of the protection section of the Quebec Immigration Lawyers Association, which represents close to 150 members.
In 2002, the Canadian government decided to reduce from two to one the number of commissioners examining claims for refugee protection and determining if Canada should grant protection or not to the individual concerned. This means that the faith of claimants is now in the hands of a single person. Some of these decision-makers do not have legal training and yet are called upon to adjudicate important legal matters and their decisions have serious consequences, for example the removal of a person to a country where he or she risks persecution, torture and even death.
Refugee status determination is a complex process given that the commissioner is called upon to determine the credibility of an individual while taking into account cultural differences, but the commissioner must also apply concepts of law that are inherent to the definition of persons to protect or refugees as set out in the convention. This decision making process leads to decisional inconsistencies between commissioners that are sometimes called upon to examine similar cases but who render diametrically opposed decisions. This situation is certainly not beneficial to the Immigration and Refugee Board nor to the claimants, given that it puts into issue the very integrity of the system. The Refugee Appeal Division will therefore allow the system to be more consistent since the decisions made on appeal will apply at the lower level when the facts are the same.
At present, there is not a true right of appeal for refugee protection claimants. The only possibility for review sits with the Federal Court. This review or judicial review is done when leave has been granted by the court and only for certain types of errors. Consequently, many refugee status claimants, despite having convincing arguments, see their request for a judicial review refused, and their case is never re-examined. Furthermore, the Federal Court, when carrying out a judicial review, must refer the file back to a differently constituted tribunal for determination, which creates delays, costs and red tape.
This situation would obviously be different with an appeal system whereby the tribunal would have authority to hear and determine the case based on merit. The establishment of an appeal process would be a guarantee of the integrity of the system, because it would allow the correction of the gross errors that the refugee protection process is presently tainted with.
In the fall of 2007, the present head of the Immigration and Refugee Board, Mr. Goodman, stated that he needed a 12-month window to establish the Refugee Appeal Division, and this from the date upon which the bill would receive royal sanction. That is an extremely long time frame, because more than five years have already gone by since the implementation of the Immigration and Refugee Protection Act without the Refugee Appeal Division provided for under the legislation.
Lastly, Bill C-280 was passed by the House of Commons in June of last year, which gave the government several months to prepare itself for the probable adoption of the bill.
I submit to you that the bill should not be amended so as to not further delay the establishment of the Refugee Appeal Division.
[English]
Senator Di Nino: Thank you for coming. This is an issue that we have been dealing with for a couple of months now. The refugee system we have is highly respected around the world. I think the difficulty that I and some of my colleagues are facing is that the people who know this issue better than anyone else — the current and four previous immigration ministers — have all said, in one form or another, that the system we have is designed to be fair and balanced in our dealings with the refugees who come to our shores. The system is already relatively cumbersome. It has mechanisms in place to allow those denied certain processes to bring forth their positions.
Mr. Berger, you have suggested that if we enact this legislation and bring in the RAD, certain steps should be taken before we do that. Otherwise it would bog down the system even more than it is today. Did I understand you correctly?
Mr. Berger: That is correct.
Senator Di Nino: One of the issues raised is that the legislation would allow those who have been denied their claim over recent years the right of appeal to the RAD. Some of these claimants may no longer even be in this country. Do you agree with that?
Mr. Berger: When reading the transcripts from this committee. I have noted that a large number of people could be involved. The number of individuals who have been refused and are still in Canada is huge because the CBSA has not yet removed them. As a matter of procedural fairness, it may be a necessity to give those people a merit-based appeal. However, Parliament is supreme, and it could decide that because they have already had their Pre-Removal Risk Assessment, this legislation should not be retroactive to include that large body of individuals.
Senator Di Nino: In effect, do you think if this legislation is to go through, it should be amended to ensure that it does not impact on those who have been rejected in the past number of years? I think the number is suggested to be something close to 40,000.
Mr. Berger: The short answer to your question is that I believe those who have been refused and are still in Canada should have access to the RAD if it is implemented.
Senator Di Nino: Do you see that as an improvement on the system we have today if we need to process 40,000 people now in the system?
Mr. Berger: The whole principle of the RAD is that the appeal mechanisms to date have been inadequate. First, I think we need to get a handle on the numbers from CBSA. I do not know if CBSA provided you with the figure of how many people would be involved. As a matter of procedural fairness, I would argue that they ought to be entitled to the RAD appeal.
Senator Di Nino: For your information, I am not sure if the figures are from CBSA, but we have been provided with the information on the committee hearings: It was approximately 40,000. That number did not come from us; it came from information that was provided. Whether it was provided by the officials or others, I do not recall. I will look into that.
By introducing the RAD, it is generally estimated that that could lengthen the process by at least another six months, if not more. Is this so?
Mr. Berger: That may be true if you have the RAD hearing — the record that was before the RPD, and continuing with the PRRA process. That will add another layer to the proceedings.
As I said at the beginning of my submission, I believe you can streamline the system and make it more efficient by allowing the RAD to hear the new evidence and abolish the PRRA all together, which will shorten the time lines.
Senator Di Nino: I will ask you another question. How long do you think it will take for the system to be able to handle the RAD? There has been a suggestion from the ministry that they would need at least 18 months. Would you agree with that? I am talking about the training, the preparation, the manuals, et cetera. You said previously that you do not believe the board knows what questions to ask, which indicates to me that you feel they are probably not at the level of skill that they should be at.
Would this not add an additional period of time wherein many people would be denied their process because of the additional time it would take?
Mr. Berger: There is always a learning curve in implementing any new procedure in any endeavour. However, that does not mean it should not be implemented. Of course it should be implemented —
Senator Di Nino: I did not ask that. How long do you think it would take for the department to actually be ready? You have been at this business for 20 years. You have a better idea than I do. How long do you think it will take before they can handle it?
Mr. Berger: The main obstacle is to hire the members. As you have heard from many people, the RPD — in fact, the entire board — is not at a full complement of members. That is the main stumbling block. You should put that question to Mr. Harper.
As far as the division being up and running, you have experienced refugee officers and many experienced board members; I do not see that as being a stumbling block.
As far as the actual number of months to get it up and running, that is something you would need to ask the board.
Senator Di Nino: We did. They said 18 months.
Mr. Berger: I am not in a position to determine time lines. I do not see why it should be as long as 18 months. I do not see training the members to create the rules of that division taking more than a few months. I do not see how it has to be 18 months. I think it could be done much quicker than that.
Senator Di Nino: Mr. Handfield, do you have any comments to make on that?
[Translation]
Mr. Handfield: I would have much to add. There seems to be a concern with regard to the time frame. To draw a parallel, when I was a commissioner in Montreal, there were 75 of us at the RPD, the Refugee Protection Division. Today, as we speak, there are 24 commissioners. Clearly, the processing of the claims takes longer; the claims are obviously going to pile up.
As for the establishment of the Refugee Appeal Division, in all honesty, I believe that a six month time frame would be amply sufficient. The Immigration Board has already begun to prepare for the establishment of the Refugee Appeal Division. Already, when I was commissioner, a call for offers was made to commissioners with a view to finding out who among them would be interested in sitting on this new Refugee Appeal Division in Ottawa. The commissioners presently in the pool of the Refugee Protection Division could most certainly very easily work, on a voluntary basis, with the Refugee Appeal Division.
We are talking about the fact that there are at present some controls or mechanisms in place so as to allow applicants who have seen their refugee status claim rejected obtain a review of their file. My colleague spoke earlier about the PRRA or Pre-Removal Risk Assessment System. I do not know which agency provided the numbers to you but at present the acceptance rate nationwide is of 1.8 percent; 1.8 percent of claimants are refused a reversal of the decision by the Refugee Protection Division. Why is it? Because the refugee claimant must provide "new evidence''; in other words, the PRRA officer studying the file does not take into account the evidence presented before the Refugee Protection Division. It must be new evidence. If the commissioner at the Refugee Protection Division made a gross error, that error will unfortunately never be able to be corrected.
If we look at the judicial review at the Federal Court level, year after year, 10 percent of applications accepted for review see the decision overturned and are referred to a differently constituted panel. Why? Because the only element the Federal Court judge looks at is whether or not it can be proven that the decision is patently unreasonable.
Judges have on occasion told me: "I would not have rendered the same decision but, unfortunately, I do not have authority to intervene because my role is limited to determining if the decision is clearly unreasonable''.
When we talk about timelines, I rather believe that the Refugee Appeal Division will increase them rather than reduce them. Indeed, as is the case of any higher court, this division will develop a bank of case law and, faced with similar facts, the Refugee Protection Division will automatically have to base itself upon it. For cases that are similar, I do not see a commissioner in the first instance, therefore with the Immigration Protection Division, going against the decision of the Refugee Appeal Division, whether it be positive or negative.
That is at the very heart of the integrity of the system. It is our hope that the system aim, on the one hand, at ensuring that those people who need protection obtain that protection from Canada. But for those who do not deserve this protection, the system in place must ensure that they do not benefit from the protection of Canada.
[English]
Senator Di Nino: Am I out of time? If so, I will take a second round.
Senator Goldstein: Mr. Berger, thank you for appearing to share your insights and knowledge with us.
[Translation]
Mr. Handfield, I also thank you for having come here to help us in the decisions we will have to make.
[English]
Mr. Berger, I am particularly interested in your assertion that Canada must try to do something to diminish fraudulent claims or, as you call them, bogus claims and bogus claimants. I took careful note of the four approaches that you are suggesting, one of which is a visa requirement. I did not understand that. Can you tell us exactly what you mean by that?
Mr. Berger: The reason we see 25 per cent of refugee claimants as Mexican citizens is that there is currently a safe third country agreement with the United States. What that means is that claimants in the United States who come to the Canadian border to make a claim are turned back and told that they must make their refugee claim in the United States.
However, there is an exemption for some countries, including Mexico. The reason there is an exemption for Mexico is that Mexico as a country does not have a visa requirement for Mexicans travelling to Canada, but Mexicans require a visa for travel to the United States. Because of that peculiar twist, Mexicans can simply come to the border and say, "I want to make a refugee claim,'' and that is what they are doing.
Senator Goldstein: I am not sure I understand how a visa requirement would stop that.
Mr. Berger: It would stop that because if they try to get a visa to come to Canada, likely the visa would be refused. If they simply went overland from the United States to the Canadian port of entry at the border, they would not be allowed to make a refugee claim because they would be caught by the safe third country rules, just like citizens of all other countries. Putting the visa requirement in would create that situation.
Senator Goldstein: You are not suggesting that the coming into force of this segment of this statute be delayed until these safeguards are put in place, are you?
Mr. Berger: Yes, I am. The reason is that I do not want to see the RAD overwhelmed with claims that were correctly refused by the RPD, which is exactly what will happen if the statute is implemented as is. As I said in my closing remarks, I want to see the majority of the caseload in the RAD to be those cases which were inadvertently incorrectly refused by the RPD.
Senator Goldstein: How do you deal with the situation where, presumably, there were some refugee claimants who had a just claim but who were refused? Otherwise there would be no reason to have an RPD. They have to be delayed and, ultimately, deported until our country decides to put in these four safeguards.
Mr. Berger: The people in the system already, as I see it, will be allowed to file their appeal in the RAD. I am talking about going forward. I am talking about implementing my four recommendations going forward to alter the balance of genuine versus bogus refugee claimants coming to Canada.
Senator Goldstein: Are you suggesting that the RAD be postponed theoretically forever if the government decides not to implement these four safeguards?
Mr. Berger: I believe the Canadian people and genuine refugees in general would be better served if these safeguards are implemented. If they are not implemented, I still think the RAD should be put in place.
Senator Goldstein: That was my question. I understood your answer to be different.
Mr. Berger: I am pushing for the best possible system, not the second or third best possible system.
Senator Goldstein: The perfect is the enemy of the good. The question arises as to whether we should implement the RAD for those who have been incorrectly or inappropriately denied asylum precisely because, some of us have submitted, we have an international, human and Canadian obligation to do so.
In an ideal world, you would also want these safeguards to be implemented. Absent the implementation of those safeguards, you would, as I now understand it, still want to have an RAD, is that right?
Mr. Berger: I would, but it would be the second best system.
Senator Goldstein: I understand that. May I ask a question of Mr. Handfield, if it is a quick question?
The Chair: If it is quick, yes.
[Translation]
Senator Goldstein: Mr. Handfield, thanks to you as well for having come to assist us with our study of this matter. I made note of the fact that you pointed out that at the moment one judge or commissioner alone decides on the claims, including in matters of credibility. In your mind, might an appeal instance intervene without the claimant appearing before it? In the same way, based upon the file as put forward in the first instance, could the appeal tribunal decide on issues of credibility?
Mr. Handfield: Obviously, and in all honesty, it could be difficult for the appeal division to intervene if the commissioner's decision is based solely on the total absence of credibility. It would however have to be determined, despite the fact that the decision pertains to credibility, if other aspects of the file have been omitted by the Refugee Protection Division commissioner. In such a case, I believe that the appeal division could intervene. But if we are talking exclusively of a decision based on total lack of credibility, I believe that could be difficult.
Senator Goldstein: The present system, with possible recourse to a judicial review, but not an appeal before the Federal Court, is based upon the criterion of the case being "patently unreasonable''.
Will the recent Supreme Court decision — not on an immigration matter but on a similar issue in the context of an administrative tribunal — not change this criterion in order to establish a pure and simple criterion of unreasonableness, or what we call, in our jargon, simpliciter, to use the Latin term?
Mr. Handfield: If I understand your question, you would like to know, if were we to change the criterion to reverse the decision at the Federal Court level, if that might clarify the situation. Is that correct?
Senator Goldstein: Yes.
Mr. Handfield: Good question. One must understand that in the case of the Federal Court it is "with leave.''
Senator Goldstein: Yes, I know.
Mr. Handfield: As a matter of fact, immigration lawyers are somewhat surprised by the way in which such leave is granted or not. We do not know. The reasons for these decisions are not provided.
However, I would like to come back to your first question with regard to credibility. I have made rulings on credibility. We must not be sticklers to too much of an extent either. In our assessment of credibility, we base ourselves upon contradictions, implausibilities, important facts in the claim for protection. It is easy for a commissioner to say that the asylum seeker is not credible because he contradicted himself with regard to the date of birth of his children or the colour of the police car. That is but an example. There are therefore rulings on credibility of this nature. Obviously, it is my belief that the appeal division would be a very appropriate forum for intervention in such cases.
Senator Goldstein: You stated that a call for offers had already come out.
Mr. Handfield: At the time, when I was commissioner.
Senator Goldstein: Not at present?
Mr. Handfield: No, not at present. If there is one out there, I am not aware of it.
[English]
Senator Oliver: I have a brief question for each of you. Mr. Berger, thank you very much for your excellent presentation. It was clear and very persuasive. You understand the sections of the act very well.
If this bill were passed right now, it would bring into effect sections 110, 111 and 171 of the bigger act, the IRPA. The section that would be excluded in this bill is section 73. Section 73 is the section that, if brought into force, would allow the Minister of Citizenship and Immigration to seek leave for judicial review from the Federal Court with respect to any decision made by the RAD. Do you think it would be fair to include that in Bill C-280?
Mr. Berger: I would not have a problem with that.
Senator Oliver: Mr. Handfield, I commended Mr. Berger on his excellent presentation. He gave us four recommendations that should be put in place in order to stem an overflow of bogus claims so that this new refugee appeal division is not flooded with them. In that way, we may give it a chance to succeed.
He said that there are four things he would like to see, one being to ask the right questions. He said that with manuals, documents and training, the board can be taught to ask the right questions. The second was about the IRB's indifference to passports, and with proper training, that would not take long to correct. The third is the biggest one, and pertains to fraudulent documents. He went into detail about fraudulent documents from political parties in other countries, and fraudulent certificates and other reports that have been tampered with. A great deal of work must be done in that area so that this new court would not be flooded with bogus and fraudulent documentation in their claims.
Do you not agree that we need time to clear up that kind of mess? You are knowledgeable about these procedures and, therefore, must know about these fraudulent documents and claims. Do you not think that, rather than flood this new court with these problems, it would be better to take the time to do it right?
[Translation]
Mr. Handfield: One of the main reasons why people present themselves before the Refugee Appeal Division with bogus documents is the following: if they do not provide documentation, their claim will be rejected.
Over the years, tribunal commissioners decided to ask political party members, for example, to produce a membership card or a certificate; in the case of those having stated that they had been arrested by the police, they asked them to produce a police report. The individual may in fact have been arrested and beaten repeatedly. But it often happens that these people are unable to provide documents as evidence of the facts. However, the community and the people talk. Claimants are told that if they say that they were arrested or imprisoned, they will not be believed unless they provide written proof. They therefore do anything they can in order to obtain such documents.
In my view, another way of viewing things should be instilled in commissioners. We talk about passports and visas. If a person who fears for his life presents himself at the Canadian embassy in some foreign land to apply for a visa and dares say that he wishes to come to Canada in order to ask for refugee protection because he risks being killed in his country, the visa will be refused. If Nelson Mandela had applied for a visa in order to request protection in Canada, at one point in time, his application would have been refused.
A visa requirement, as my colleague was saying, would eliminate abuse. However, legitimate asylum seekers would risk being refused access to Canada. The implementation of such criteria would certainly make human traffickers smuggling people into Canada very happy.
[English]
Senator Oliver: Canada's justice system has not been built upon the admission of fraudulent claims and documents. Certainly, our administrative tribunal system is not based upon that, and I would hope that you are not suggesting such.
Mr. Berger, do you want to add anything? It was your third recommendation and I would like to hear from you.
Mr. Berger: I agree with my colleague's comments about the pressure put on claimants to produce fraudulent documents. This can be corrected overnight by saying in the personal information form, PIF, given to claimants: "Do not submit fraudulent documents in support of your claim.''
Senator Goldstein: That invites them to do just that.
Mr. Berger: Why?
The Chair: I would like the witness to answer the question.
Mr. Berger: It would end with, "You may be charged if you do.'' Once the community sees that charges will be laid, that kind of behaviour will stop overnight.
Senator Oliver: Thank you.
Senator Jaffer: I thank both of you for your articulate presentations. Certainly, they helped me to understand some of the issues surrounding this bill.
In your respective areas, how many members of the board are there, and how many should there be? We can begin with you, Mr. Handfield.
[Translation]
Mr. Handfield: I was appointed commissioner in January 1994. I left the commission in December 2004. At the time, we were 75 commissioners at the Refugee Protection Division in Montreal.
Today, as Vice-President of the QILA, I attend meetings with the heads of the commission in Montreal. We therefore have statistics. According to the most recent data, there are presently 24 commissioners in Montreal.
I believe that in Montreal 20 additional commissioners would be required given the backlog that is piling up. Wait times are becoming longer. People are waiting 10, 12, 14 and in some cases even 16 months to have their claim for refugee protection heard.
[English]
Mr. Berger: I agree. In the old days, the waiting room at the refugee board offices in Montreal was full. You could not find a seat. It was the same in Toronto. Now, they are empty. There are not enough board members to hear the claims. There are not enough claimants because of the safe third country rules. It has changed a great deal over the last several years.
Senator Jaffer: My next question is for Mr. Handfield. You were a commissioner and your colleague has raised issues about the questions asked, and about passports. I will leave the visa and fraudulent documents issue for later. Do you agree that these are not legislation issues but, rather, issues of improving the training provided. In your experience as a commissioner, what is your opinion?
[Translation]
Mr. Handfield: Today more than ever, training is extremely important. The claimant gives evidence to just one commissioner. As I mentioned in my statement, very often, these decision makers are not legally trained. Before their appointment as commissioners, in a good many cases they have no knowledge whatsoever of the law. They therefore must be given appropriate training and ongoing training. I can but agree with my colleague in that regard.
When people appeared before two commissioners, in most cases we endeavoured to ensure that the panel be made up of at least one lawyer and another non-legal member, precisely so as to be able to deal with important legal questions.
[English]
Senator Jaffer: My other question is in regard to the visa. I am willing to be corrected but my understanding is that a minister can make an administrative decision at any time about what country's nationals need a visa. That is not needed in this legislation. Is that not correct?
[Translation]
Mr. Handfield: At one time, in the case of Chile, the Canadian government decided to remove the requirement for a Canadian visa and it later decided to reinstate the visa requirement. That was a purely administrative decision.
[English]
Senator Jaffer: Mr. Berger, you raised some valid issues. It was clear in my mind that you want to keep the process intact for the real Fatimas of the world, and ensure that we have a good process. I commend both of you for that.
I understand the suggestions you made would be issues of training rather than needing amendments in this legislation.
Mr. Berger: That is right. You need no changes to the legislation for my recommendations. Most of them can be done overnight.
Regarding the question you put to Mr. Handfield on the training of members, if you have a chef and you do not give him fresh ingredients, or you have a surgeon and you do not give him proper surgical tools, you will not have a good meal or a proper surgery. These are hard-working men and women, but they are not given the right tools. How can they know that my client was in Sweden all those years when the board does not routinely make inquiries to the other European countries?
Senator Jaffer: That is true for anything. This legislation is all about looking after the many other Fatimas who need protection.
Mr. Berger: That is right. There are many other Fatimas who were deported because they do not have Michelle Landsburg and the RAD.
The Chair: There are many more questions we could ask in this complex field. For example, what is an appeal as opposed to a review? Does this appeal have all of the qualities that we normally know in criminal law or other appeal processes? However, we have run out of time.
I would like to thank both of our witnesses, Mr. Berger and Mr. Handfield, for taking a very complex issue and bringing it down to a level where we can debate some of the essential issues. Thank you for your expertise and your time.
On this second panel this evening, we are privileged to have members from the Office of the United Nations High Commissioner for Refugees. We have Mr. Abraham Abraham, Representative in Canada. Accompanying him are Mr. Hy Shelow, the Senior Protection Officer; and Mr. Michael Casasola, the Resettlement Officer.
I understand that there will be one presentation.
Abraham Abraham, Representative in Canada, Office of the United Nations High Commissioner for Refugees: As an introduction to the issues relating to our discussions today, I wish to share with you part of an address to the Ministry of Foreign Affairs of The Netherlands on April 8, made by António Guterres, the United Nations High Commissioner for Refugees:
Today, we encounter the word "refugee'' in all kinds of contexts. We read about "refugees'' from hurricane Katrina, from hunger, and environmental "refugees.'' Indeed, there is a growing disconnect between the legal definition of a refugee, and the way in which the word is used in public discourse.
The 1951 Refugee Convention defines a refugee as a person with a well-founded fear of being persecuted in his or her home country for one or more of the following five reasons: race, religion, nationality, membership of a particular social group or political opinion. So defined, refugees are often contrasted with economic migrants, who are seen as people on the move in search of better economic opportunities. Thus it is common to speak of forced migration on the one hand, and voluntary migration on the other.
But things are not so simple. More and more, people are on the move for a variety of reasons, and migrants and refugees are on the move side by side — as we can see today on the Italian island of Lampedusa, in the Canary Islands, at the border between Slovakia and Ukraine, and in many other places. Key to UNHCR's work is to be able to identify who needs international protection. We must ensure that persons seeking protection have access, namely to asylum procedures and to a fair treatment of their claims.
The interpretation of the refugee definition contained in the 1951 Convention has evolved and improved over time. It is now generally accepted, for instance, that persecution need not be at the hands of state agents. The refugee definition is more widely applied, to give just one example, when persons are members of specific social groups — such as women and girls at risk of genital mutilation — when the government cannot protect them from harmful cultural practices. The Organization of African Union's Refugee Convention extended the definition to victims of generalized violence: ("events seriously disturbing public order''). But still we see today more and more people on the move who cannot be considered refugees strictly speaking, yet are not typical economic migrants either.
Such people are driven to move not only because of war and persecution but also because of environmental degradation, climate change and extreme deprivation. These causes are all increasingly interlinked. Climate change can ignite conflict which can lead to displacement. The classic example is a Janjaweed attack on a village in Darfur. Indeed, there is a political dimension to these attacks, but the situation also reflects a conflict over natural resources. The population of Darfur has been growing, and rainfall has been steadily decreasing. As a result, the relationship between farmers and herders, who compete for water, has deteriorated. Similarly, war generates poverty and deprivation and has detrimental effects on the environment. In other words, it can be difficult to precisely pinpoint precisely the reasons why a person is on the move.
Madam Chair and honourable senators, fortunately I do not have to argue in favour of a broad interpretation of refugee protection today. Canada has a proud tradition of interpreting international refugee law and implementing a broad definition regarding who qualifies as a refugee.
However, Canada is not insulated from the changing dynamics of displacement in the world today. As you can see, subsequent to the end of the Cold War, displacement has, if anything, become more complicated. The identification of refugees in today's environment is a complex task requiring skilled assessment. Given the issues at stake, when it comes to decision making regarding asylum seekers and refugees, it is fundamental that we "get it right.''
When Canada undertook to create the Immigration and Refugee Protection Act, the IRPA, in 2001 and repeal prior national legislation, broad human rights principles and protections were incorporated into the new national legislation. It includes first instance decision making regarding asylum seekers' claims, as well as an appeal instance that reviews the merits of the first instance decision making.
The Office of the United Nations High Commissioner for Refugees, or UNHCR, was involved in discussions before, during and after promulgation of IRPA. These continue to the present. We appreciate the engagement of the Canadian government interlocutors. It is another example of the excellent relations UNHCR has with Canada.
I thank you for providing this opportunity to be heard today. Refugee status determination is a complex task and decisions that are taken have a fundamental impact on people — often a life-saving impact. If it is incorrect, a decision to refuse protection to an asylum seeker condemns that person to involuntary return to his or her country of origin, where he or she may well be subjected to fundamental human rights abuses, including fear of persecution and possible loss of life.
At the time IRPA was created, UNHCR was glad to see that it provided for an appeal instance, based on merits of the first instance decision, to assure that individuals found not to be refugees as determined by the concerned IRB member would have recourse to a review of those decisions by an independent reviewer. This reviewer would examine the claim submitted by the asylum seeker as well as other material as contained in the IRB files, including the decision of the IRB member, to assure that a negative decision was appropriate. Where incorrect decisions at first instance are undertaken, this provides redress. It helps to avoid a situation whereby a final decision taken at first instance that has a fundamental impact — a decision that, in the case of a refugee can be a "life or death'' decision — could be made by one person, through introducing checks and balances into the system.
There are other check and balances intended. In IRPA, the first instance decision making body was to be composed of more than one person. This, combined with the appeals mechanism, provided a very high degree of assurance that decisions would not risk being erroneous.
I wish to note that implementation of legislation as set out in IRPA has been different from what the law contains in that subsequent to promulgation and implementation, first instance decisions have been made by only one IRB member. The appeals mechanism in IRPA was never implemented.
Having said this, I hasten to underscore UNHCR's confidence in Canada and the overall commitment of IRB members to refugee protection. We have regularly highlighted the IRB as an entity of excellence, and our concerns do not in any way relate to the general quality of IRB members. On the contrary, UNHCR has high regard for the IRB as an independent first instance decision maker.
At the same time, we also understand that human beings can and do make mistakes. UNHCR has sought to avoid a situation where one assessor made a life-or-death decision, and that assessment was not subject to review regarding its merits. What we hoped would be avoided is actually what is occurring today. In the absence of a second instance review based on merits of the case, Canada's refugee status determination system does not conform to international standards.
For UNHCR, non-implementation of a Canadian appeals mechanism caused consternation. We have repeatedly highlighted our position that an appeal instance is necessary to assure a full and fair procedure.
In the vast majority of industrialized countries, a two-tiered system which includes an appeal on the merits is in place. In UNHCR, we also have experts who are responsible for refugee status determination in countries that are unwilling or unable to institute national refugee status procedures. Though the number varies annually, UNHCR generally undertakes refugee status determination in about 90 countries. Internally, also, we require a merits-based appeals process, undertaking a second review in cases of asylum seekers found not to be refugees. We do this because we understand that mistakes can happen. UNHCR considers that, to be full and fair, merit-based review of rejected claims is necessary.
UNHCR is not alone in this; the UNHCR governing body, the Executive Committee of the High Commissioner's Programme, upon which Canada sits as a member, has regularly called for states to implement full and fair refugee status determination procedures.
In some states, the second-tier appeals body is a court where the appeal is heard through judicial review, as in Canada. However, in the case of Canada, the judicial review is restricted to those appellants who are granted leave to appeal by the Federal Court; many claims are not admitted to be heard. Further, judicial review is restricted to matters of law and compliance of procedures, and courts are not called upon to review the factual merits of the asylum seeker's claim. In the view of UNHCR, judicial review as provided for in the Canadian system does not, therefore, constitute access to full and fair procedures.
As mentioned above, this judicial review is not merits focused. Thus, we strongly advocate that a two-tiered review of the substance of claims is necessary and, therefore, a mechanism to assure this in Canada, while available in the IRPA, should be implemented. The merit-based appeals process as set out in the Refugee Appeal Division, or RAD provisions of IRPA would meet this standard, if implemented, and UNHCR would like to see this happen.
It has been suggested that there are other available mechanisms being implemented that address the need for an appeal on the merits. This is inaccurate. IRPA contains a Pre-removal Risk Assessment, PRRA. This process is implemented where asylum claims are rejected and individuals are subject to removal from Canada. Again, PRRA expressly does not examine the merits of a claim made by an asylum seeker before the IRB. Citizenship and immigration PRRA officers cannot overturn an IRB decision and cannot recognize a refugee.
There is also the humanitarian and compassionate grounds process, H&C, whereby an individual can request to be allowed to remain in Canada when removal would be inhumane. For example, where an individual has married and/or has children who are Canadians and would be forcibly separated from them if removed. While commending the H&C process, this does not substitute the need for a merit-based appeal mechanism.
UNHCR agrees that expeditious procedures that provide a speedy resolution to asylum claims are an important element of any national protection regime. UNHCR is aware of the valid concern of the Government of Canada that a multi-tiered system, lengthy and complex, is undesirable. We understand that Canadian law requires access to judicial review, and includes a number of other processes whereby an individual may seek to remain in Canada. We also understand that the RAD was included in IRPA precisely because of the need for effective checks and balances, and this need is not otherwise met in the law.
In this respect, UNHCR would underline the importance of ensuring that the RAD is adequately resourced and that the staff recruited for this purpose is first trained before the RAD can function effectively.
Providing protection to refugees is indeed difficult, but it is fundamental to protect basic rights of refugees, consistent with the obligations of states as embodied in the international refugee and humanitarian instruments to which Canada is a party.
Madam Chair, honourable senators, I thank you again for having me here today.
The Chair: Thank you for the opening statement. It certainly covered all of the points and gave us the UNHCR perspective, for which we are grateful.
Senator Di Nino: Welcome, gentlemen. Mr. Abraham, yours is a difficult task; we understand that. When you talk about Darfur and some of the other places in the world, we have nothing but high regard and respect for you and your people who do an incredible job. Sometimes it seems lacking, but not on your part.
I have three or four quick questions and points to make. First, I am sure that you are aware, because I am sure you follow this, that the current Minister of Immigration and the previous four immigration ministers from both political parties have strongly stated that we do not need this legislation. One of the past immigration ministers — I think he was the last Liberal immigration minister, actually in the House — voted against this bill. These are people who probably understand this issue better than any one of us sitting around this table, and I include yourselves because you are familiar with this issue.
Why do you think these five experts on this issue would disagree with the promulgation of the RAD at this time?
Mr. Abraham: UNHCR is not doing anything independently. We are made up of the states. We have an executive committee that advises the High Commissioner on what is the best course in terms of whatever response UNHCR would have to make in the context of either welfare of the refugees or protection of the refugees. This is why I said Canada sits on this committee, but I would not want to comment on what other ministers may think about this particular issue.
Senator Di Nino: Fair enough. Thank you for that.
The second point is the general expression of concern about adding another layer, which would actually add more time to the process. Obviously, if it is to go through the process and have one more step, it is estimated that will take about five or six months. It may be longer or shorter, but the estimation of five or six months has been standard.
One of the previous presenters suggested to do away with the PRRA and to put in the RAD so that one of the steps will be eliminated and would speed up the process a little more. The concern I have is that, with the RAD provision, being a review of the evidence that is there now, no new evidence is allowed that would weaken the person's potential of getting a more positive hearing, and that the PRRA actually admits new evidence; that is, changes. Under the RAD, even if there were a change to the situation, the legislation does not allow that to be considered.
Do you think this would make the legislation better? That is, by getting rid of the PRRA and putting in the RAD? Do you agree with me or do you agree with the previous presenter?
Mr. Abraham: I will try to respond to the first part and I will let Mr. Shelow respond to the second part.
We must remember one thing: When we talk about the life of an individual, three or four months — if that is what it will take for RAD to determine the case — is nothing in the life of an individual. What we must be most concerned about is whether we are dealing humanly and humanely with a particular individual, where, if the decision goes wrong and if the person is removed from Canadian soil, then who would be accountable if something really went totally wrong and the person lost his or her life? That is the first issue.
UNHCR is trying to say that a second-instance decision is important in order to ensure that we have not made a mistake. I said earlier in my statement that we can make mistakes. The second-instance decision is precisely intended to eliminate any possible error of judgment.
On the second part, I will ask Mr. Shelow to respond.
Hy Shelow, Senior Protection Officer, Office of the United Nations High Commissioner for Refugees: You are proposing that there is an either/or situation here; if we take the RAD, then we abolish the PRRA.
Senator Di Nino: It was a suggestion made by a previous witness.
Mr. Shelow: My response to that is the two instances are intended to do entirely different things. One reviews the rights and obligations of an asylum seeker and, based on a first instance determination, decides whether that determination was correct or not.
The second looks at subsequent events — the time in between a decision of, in this case, the first instance; a RAD would then look at a second instance. That period subsequently may have a number of different things that occur. There may be the creation of something called a refugee "sur place.'' For instance, circumstances in a country of origin may change in between the first instance of determination, if there is a RAD at the appeals determination. Then subsequently, prior to removal, there may be an entirely new situation that the individual is facing.
I do not think we can really examine the law in bits and pieces. It works as a continuum through a process. Right now, part of that continuum has been removed, and that is problematic.
Senator Di Nino: Before asking my last question, I want to thank Mr. Abraham for being so kind to our system. Several times he complimented Canada on our excellent system and the excellent people who work there.
You made a comment on page 4 of your remarks, when you were talking about judicial review, et cetera. You said many claims are not admitted to be heard. In effect, is not the judicial review itself a hearing? A judicial body is saying that there is a valid reason to either accept or not.
I suggest that I am not in agreement with your statement that says many claims are not admitted to be heard because they all are, in effect. The judicial body says we do not think there is enough evidence for this to go on. I do not want to be critical, but I think that statement is not correct, in my opinion.
Mr. Abraham: It is basically linked to the question of to what extent the asylum claimant is heard. The judicial review does not take into account, as we have been saying, the merits of the case. In effect, it is as good as saying the case, the individual, is not being heard.
I always feel that individual claimants, depending on what the circumstance and situation is, may or may not be able to say what they want to say, or they may not say anything at all. That is why it is important that they are fully heard. I think only a second instance would provide for this. I do not know if my colleague has anything more to add on the legal side.
Mr. Shelow: On the decision not to admit, the suggestion is that, in essence, that is a judicial determination — not to admit the claim for review. At present, the Federal Court is limited from reviewing substance. What it will look at is whether the claim is according to the legal process, as opposed to examining any of the merits.
If a claim is admitted for judicial review, even at that point the courts will not look at the merits. It is not addressing the intention of the RAD, which was for a merit-based appeal.
Senator Di Nino: I will just put a correction on the record. Mr. Berger, the gentleman I was referring to earlier, corrected me by saying that he had suggested if we do it in a way that the PRRA promulgates the RAD, then we should allow the RAD to hear new evidence, which is what you are saying. For the record, I did not want to misquote you, sir.
Mr. Abraham: If I could quickly respond, I do not think UNHCR has any difficulties with what the Canadian government does in terms of its own law. The only point we are trying to make is that a second instance decision is absent at the moment. I think the PRRA is there and the judicial review is there, but the RAD, as intended in the IRPA, is absent.
Senator Di Nino: If there is time, I would like to go on a second round.
Senator Goldstein: Thank you, Mr. Abraham, Mr. Casasola and Mr. Shelow for coming to help us in our deliberations. I am very pleased you made the distinction between the Pre-Removal Risk Assessment, the PRRA, on the one hand and the absence of an appeal mechanism on the other; and that you have pointed out that the two are necessary in order to have an integrated system. I thank you for that.
In 2002, your predecessor, Judith Kumin, wrote a letter to Minister Coderre on May 9 more than six years ago, indicating, among other things, that your organization "considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process.'' That is a rather strong statement for a non-confrontational body like your own. Have you written to any other ministers, to your knowledge, since that letter of May 9, or has that issue been dormant? Have you made any representations to any other ministers?
Mr. Abraham: It is been only four months that I have been in Canada, so I will seek my colleague's knowledge.
Mr. Shelow: When you say UNHCR is not faced with a confrontational situation here, that is correct. We are grateful for that. Our relationship with Citizenship and Immigration Canada, as well as the various staff members at senior levels who look at these issues, is very close. We have discussed this issue on many occasions, both in the isolated context of discussion of a RAD and also in terms of discussions on what has generally been labelled "asylum reform.''
Senator Goldstein: Have you written, to the best of your knowledge, to either the Department of Immigration or to the minister subsequent to this letter of May 9?
Mr. Shelow: I would have to look at the correspondence to see if any was specifically linked in detail to the RAD, but there have been a number of exchanges.
Senator Goldstein: May I ask that if there is any such correspondence, could you give us the opportunity of seeing it?
The Chair: In your review, if you do come across any other correspondence, could you provide it to the clerk and then we will disseminate it to the members of the committee?
Senator Goldstein: I will provide a copy of this letter of May 9. Regrettably, I have it only in English so I do not want to produce it now.
The Chair: You can file it for translation.
Senator Jaffer: Welcome to Canada, Mr. Abraham. We certainly look forward to hearing from you from time to time. You were speaking about the words that the High Commissioner of Refugees spoke and I am sure you will be asking him to add Canada's gender guidelines as part of trying to reach change on the definition, because that is advancement.
We are also very pleased that all of you have expressed the warm relationship that UNHCR has with Canada. There is no doubt that Canadians want that warm relationship. However, we are not talking about warm relationships. We are talking about individuals whose lives are at stake, and we are all concerned about a process. Our concern is whether there should be a second instance review. You said eloquently that we all make mistakes. We accept that. This is to ensure that a person is not sent back who deserves to stay in this country.
With you tell us, besides Canada, Portugal and Italy, if there are any other countries in the industrialized world that do not have a second instance appeal?
Mr. Abraham: For the most part, all of the industrialized countries have a second instance appeal. It is within the context of a judicial review. Here we are talking about the review in terms of the merits of the case, which is what is absent, basically.
Senator Jaffer: It is in the act but it has not been implemented. Have you found that there have been an increased number of cases in which you have had to intervene? We all know of Enrique Falcon Ríos, who was going to be sent back. I understand UNHCR intervened on his behalf because his was a genuine case. Have you found an increase in the workload since the RAD has not been implemented?
Mr. Shelow: We regularly have discussions on individual cases with CIC. We do regularly intervene. However, in terms of formal intervention, the worst case scenario for UNHCR would be for us to have to recognize a refugee as UNHCR under our mandate, and that has not occurred in Canada.
The Chair: We keep talking about appeal and you have used the term "second instance decision.'' We all know that you can put that label on something and that might be compliance. Does UNHCR have a definition of what would be a fulsome appeal? In other words, what would the elements be to comply with a second instance decision, as Senator Jaffer just pointed out? A label is a label. It is the substance that is important.
Mr. Abraham: I defer to my legal officer on that.
Mr. Shelow: I appear to be very popular this evening.
We would consider a full and fair process to be both first and second instance review as to merits as well as process, so that the individual has access to a full review of his or her claim.
The Chair: Do you believe that a person should have the right to be represented and/or to be present at a review?
Mr. Shelow: If I can interpret, you are asking me if a RAD, which is a paper-based review, is adequate. While we prefer to have individualized interviewing, a review of the decision making at first instance as to the merits as well as to the process, we do consider to be adequate.
Within our own organization, depending on the resources available, we apply both systems, depending on the country office. It may be a paper-based review or it may be the opportunity to interview an individual, or re-interview an individual.
We reserve the right in country offices that have only paper-based reviews where the assessor may decide that, nonetheless, in exceptional cases, they have a need to re-interview the person, so there are even exceptions within our paper-based processes.
The Chair: You have signalled that Portugal, Italy and Canada were the exceptions on a second instance decision. Would the others have all types of variations of reviews so that there could be a simple paper-based review to a very complex full hearing or re-hearing, with additional evidence and all the things that we are normally used to in a courtroom process?
Mr. Shelow: To measure up to the guidelines that are available, when you say a simple paper-based review, I believe you are suggesting that there would be no possibility of interviewing or re-interviewing the individual. There are a number of countries where that is the case.
There are also a number of countries with variations on first instance determination as well. It may be a review by a government employee or by an independent body that is quasi-judicial or has an administrative role.
The Chair: Mr. Abraham, welcome to Canada in your role of four months. I will ask you this question from your previous experience. I am concerned that refugees who come into Canada be treated fairly and have every opportunity to state their case.
I am also concerned that the UNHCR handles an overwhelming responsibility around the world to people who stay in camps who have hopes of getting back into their villages and their countries, and whose hopes diminish as they sit on the ground year in and year out.
How does one, as a parliamentarian in Canada, weigh in the balance, giving adequate rights to those who have already made it to Canada for a review, as opposed to those who are in camps, sometimes in very desperate situations, year in and year out, who also play by the rules, waiting for selection or waiting to go home? How should we weigh those?
Mr. Abraham: Refugee situations are, to a large extent, not the same everywhere. There are situations where certain social, cultural or other reasons would compellingly get the refugees to move to a particular situation unless their community and the leaders discuss it and say, "This might be our best solution.'' We should not think that everyone acts independently. I believe that those who do come out, from what I have seen, are those who actually act independently.
I was in Nepal during the last five years where, overwhelmingly, the refugees decided that the only solution they wanted was to repatriate voluntarily. We just wondered how it would be possible that they could all repatriate voluntarily. It took a lot of courage for individual people among them to come forward and say, "I think I have waited long enough. It has been 18 long years. I would now like to go anywhere, but I cannot remain in the camp.''
Those are the people who move. Canada has also agreed to take 5,000 of these people. Although we have 107,000 in the camps, it is not that the 5,000 are just available immediately to take the flight over. There is a lot of work behind that. We want to make sure that those who do come are those who basically made the choice to come to Canada.
I do not think we are necessarily referring to people being brought out of the camps. This is well organized. It is part of the government-assisted resettlement program. You have many other people who come to Canada. If you look at the statistics, you will see that the percentage of refugees coming to Canada seeking asylum and being considered and granted refugee status is much lower than the total number of immigrants trying to come to Canada. Canada is a nice place. Everyone knows it is nice, so they try to make it here. You also have refugees who try to make it.
That is why we worry a lot about the nexus between asylum and migration. We fear sometimes it is possible that a refugee might get dropped and be sent back, just like any other illegal migrant or any other migrant is sent back. This is the reason we would like to see that the system that gets put into place is safe and sound, and looks more into what could be the dangers of a person being returned back to his or her home.
The Chair: If you are in a camp and you signal you are ready to come to Canada, and it is deemed that you will not, is there an appeal?
Mr. Abraham: Do you refer to those who do not wish to come?
The Chair: I am referring to those who wish to come, but when they go through your process of assessing them and getting them ready to come to Canada, having participated in that process, what is their appeal?
Mr. Abraham: They have the option always to decide what they would like to have. In my work in the camps, I have always told them, even at the last minute, if you are boarding the aircraft and decide you do not want to go, you are free to come down and go back to the camp. The choice of the refugees is always vital and important to us because we are talking about finding lasting solutions for them.
The Chair: My question is the reverse: Obviously, there is a selection process. If Canada were prepared to take 5,000 claimants from a pool of 100,000, what would happen to those not selected? Can they plead their case to be in that first tranche of refugees?
Mr. Abraham: UNHCR does not decide who gets resettled. Resettlement is basically a prerogative of the states. We help, support and facilitate the process, but we cannot take the decision on resettlement, which is determined in the case of Canada by immigration officers who interview the people. We also have the Canadian criteria for resettlement. Everything must come into play.
In the refugee camps worldwide, many people would like to be resettled, in particular those who are in highly protracted situations and cannot continue staying in the camps. They would like to appeal to be resettled but it is not a straightforward process. To imagine that a camp with 100,000 people can be resettled is a difficult thing. Over time, we hope that the situation of the countries of origin would improve in terms of human rights violations, and that the people might want to go back to their homes.
Resettlement can sometimes be a permanent arrangement, but it can also be a temporary arrangement whereby people may go back if the conditions in their countries of origin improves.
Senator Munson: When the Canadian Bar Association appeared before us last month, they indicated that one of the most troubling aspects of the government's decision not to implement the RAD was that the government was thwarting the will of Parliament by failing to proclaim the necessary sections of IRPA into force. They said to us that it was contrary to the rule of law for statutory provisions to be set aside at the discretion of the executive. Tonight, you said that, in the absence of a second instance review based on merits of the case, Canada's refugee status determination system does not conform to international standards.
Based on that view and your view, if Bill C-280 — which is to bring into force sections 110, 111 and 171 — is voted down, where does this leave Canada in the international community?
Mr. Abraham: I would not like to make a judgment on what would happen.
Senator Munson: From your perspective, it is not good enough. Is that right?
Mr. Shelow: This also relates to the question of Madam Chair. When UNHCR examines these issues, we do it from the standpoint of international law and international commitments. Canada has acceded to the 1951 Convention Relating to the Status of Refugees. It was one of the earlier acceding countries and you have a proud reputation of refugee protection here, which we continue to repeat because we want to encourage it.
Under the convention, there is an obligation to provide access to territory and to process asylum claims. There is no obligation to resettle people. That is an entirely voluntary act on the part of Canada. It is associated with your proud tradition, but we cannot hold you accountable for not resettling people. Most countries do not have a resettlement program, and Canada should be lauded for having one.
Having said that, you talked about a gap in the application of refugee protection. We tend to look at outcomes to know whether this would result in the return of an individual to a place of danger as a result of that gap, or whether the absence of an appeal on the merits in Canada would have that result. Theoretically, yes, quite possibly, because people do make mistakes.
In terms of individual cases, we identify an individual who we believe is in danger and we try to act as a stop gap by talking to the government for assurance that they will not be returned. Is that adequate? No, I do not believe it is. We have four protection staff here in Canada, including my protection assistant. There is no way that we can adequately cover, review or replace the Government of Canada in terms of the application of its obligations under international law. We are here to support as well as to monitor, and so we try to assist. This gap is a concern for us, and it leaves you in an area where we are concerned.
Senator Di Nino: I was struck by the second last paragraph in your presentation, Mr. Abraham, where you talk about the importance of ensuring that the RAD is adequately resourced. I am assuming that you are saying that to implement this facet, we would need people with different skill-sets and tools and separate systems provided. Training would be an essential component of that to minimize problems. We have been saying the same things, which means it would take some time. Have I read your comment correctly, sir?
Mr. Abraham: The point I was trying to make in that paragraph was to ensure that we have in place all of the checks and balances that are necessary so that you do not get into a RAD system with people who have not been trained to know the difference between the RAD and the first instance. That was the purpose of my comment. This cannot be done overnight because it requires a great deal of work, preparation, training, and imparting of a great deal of knowledge. I do not think that a RAD can be completed in a month or two because it must be well prepared.
As my colleague said, Canada has a long-standing tradition of doing things well in every field, I must say. It is important to ensure that the RAD is a very sound and secure system, should you implement one.
Senator Goldstein: My question relates to Canada's reputation, to which we are all very sensitive. In October 2007, border guards turned back five refugee claimants. I do not think you were here yet, Mr. Abraham, but Mr. Shelow and Mr. Casasola will probably remember it well. You were highly critical of the practice of direct-backs, which is loosely what it is called. Border people determine whether a potential refugee claimant is a bona fide refugee claimant.
What kind of process would you put in place at the border to deal with people who present themselves and, in any ordinary judgment, are manifestly not proper refugee claimants? My concern is that people will simply come to the border, request refugee status and overload the system in such a way that we simply cannot deal with it.
Mr. Abraham: Perhaps my colleague could complement my comments. It is Canada's prerogative to ensure that the security of its borders are always maintained so that the wrong people just do not come in. That is fundamental.
I am relating to the part where there is a humanitarian component in movements. We need to identify that. We need to ensure that we can discern people who are seeking to enter Canada on false grounds.
Training at the border is important. There should be mechanisms in place. We have not thought all of those things through. Our main concern is to have the right checks and balances in place so that someone at the border does not make a decision that jeopardizes someone's life. This is a life and death matter, and we need to be sure that we do not turn away someone who may end up in a dangerous situation.
Senator Goldstein: We are all sensitive to that. Thank you.
Mr. Shelow: On the issue of our involvement in and concerns about direct-backs, the safe third country agreement contains a series of security links as well as a series of protections to assure that both countries are clear on their obligations. Direct-backs fell outside of that agreement. They are not contained in it.
We were very concerned about the use of direct-backs, and strenuously objected to their use because it takes us outside of a system that is in place to create burden-sharing between states in terms of assessment of asylum applications. Therefore, many of the protections associated with who decides refugee claims were lost. Individuals could conceivably fall into the cracks and disappear. Individuals could be detained under different systems, or different legislation could be applied.
As a result, we made strong interventions with the Canada Border Services Agency, and they have assured us that direct-backs will be discontinued absent extraordinary circumstances. The extraordinary circumstances to which they refer are mass influx, or what you referred to earlier as the system being overwhelmed. Realistically, considering the resources available to Canada and your geographic position, it seems highly unlikely that your resources would be overwhelmed, that you would see tens of thousands or hundreds of thousands of asylum claimants coming to your borders.
Canada does have a reputation that is observed elsewhere, and there are countries that are receiving tens of thousands of asylum seekers at their borders every month. When you become more restrictive in terms of your application protection, there is a clear impact internationally. Therefore, it is not simply a matter of the impact on asylum seekers who come here, who, in the grand scheme of refugee protection, are a relatively small number; it is a world wide impact.
The Chair: I would like to thank our witnesses.
Mr. Abraham, please pass on to Commissioner Antonio Guterres my personal regards. I worked with him and know him from his previous political life. He is well placed to work within the High Commission, and I think he will do us all proud.
I am sure I speak for all senators when I say that we respect the work of the UNHCR both here in Canada and around the world. The fact that you have come here in such a free and open way to discuss both our shortcomings and our successes in equal measure is to the credit of the strong relationship we have with UNHCR.
Thank you for coming.
Honourable senators, our final panel this evening is composed of the Hitschmanova Committee, First Unitarian Congregation, Mr. Phil Nagy, President; and Ms. Joan Auden, member, as well as, from St. Joseph's Roman Catholic Parish Refugee Outreach Group, Mr. Gauthier, Chair; Ms. Lisa Barnet, Member; and Mr. Jan Raska, Member.
Welcome to the committee.
Philip Nagy, President, Hitschmanova Committee, First Unitarian Congregation of Ottawa: Honourable senators, my role is as the Chair of the Social Responsibility Council at First Unitarian Congregation of Ottawa. Thank you for inviting me.
Our congregation has been involved in two cases of sanctuary: Samsu Mia, a Bangladeshi citizen, sought sanctuary in our building from July 2003 until December 2004, at which time Immigration Minister Judy Sgro granted him permission to stay; Shree Kumar Rai, a Nepali citizen, entered our sanctuary in February 2007 and he remains there.
A reorganized and better-staffed system — and above all a functioning RAD — with a genuine chance to appeal the decision on the basis of the merits of a case may have obviated the need to seek sanctuary in both these cases. Implementation of this appeal process is the focus of my remarks. I will begin with brief summaries of the two cases.
Mr. Mia came to Canada in 1995 as a domestic employee of a senior official in the Bangladeshi High Commission. He was treated as a slave. His wages were withheld. He was not given his contractual trips home. He had to sleep on the floor and his shoes and passport were confiscated. In 1999, he escaped and attempted to recover his wages and passport. He, his family at home in Bangladesh and his rescuer in Canada were all threatened.
Mr. Mia's refugee claim was turned down by a single Immigration and Refugee Board member on the grounds that it was simply a personal dispute between two individuals. The decision ignored the fact that one was an illiterate cook and the other was a powerful diplomat.
Shortly after the turndown, Mr. Mia's brother in Bangladesh was threatened by a different official who had been transferred home from Canada. This was new evidence, and evidence of a continuing danger. However, there was no way under present procedures to add this new evidence as part of the case. Without an appeal process, such evidence can only be presented as part of a PRRA or an H&C.
Judicial reviews of the case actually agreed that the initial IRB member had failed to consider all of the evidence. However, it was concluded that Mr. Mia had failed to show that the Bangladeshi government was unable to protect him. This was a situation where officials of this same government were, in fact, the problem.
In 2001, his son in Bangladesh was beaten with the admonition "Tell your father to be quiet and go home.'' In March 2003, the PRRA noted this beating, and although it was reported in an H&C application, it was not documented. The result was a removal order. The decision on removal was not delayed in order to allow time to document the son's beating.
Here is the difficulty. There are times when a refugee cannot get such evidence. There are times when it takes longer, and there are times when the need for further evidence is not understood until it is too late. In many countries, doctors are reluctant to provide such evidence out of fear for their own safety.
Documentation was finally obtained. However, it could only be presented as part of a new case, not as supporting evidence for the extant case. This is precisely why the present system does not constitute a true appeal process.
Mr. Rai from Nepal joined an opposition party, the United People's Front, during the Nepali elections of 1991. In 1993, he was arrested during a demonstration and tortured. One of his friends was killed. In 1995, he was arrested again, falsely accused of arms smuggling, tortured and told that if he continued to take part in political activities, he would be killed as his friend was.
In 1995, the party decided to take up arms by joining with the Maoists. When Mr. Rai refused to participate, UPF officials threatened him and insisted that he continue to work with the now-violent party. Under threat, Mr. Rai participated in one demonstration against police excess where he remained at the back of the crowd and subsequently went into hiding because of fear of both the Maoists and the Nepali authorities.
In 1996, in an attempt to learn where he was hiding, police arrested and tortured Mr. Rai's father, who subsequently died of his injuries. Mr. Rai fled to Canada and settled in Montreal in June 1996. His wife and son, now 16, continue to live in Nepal. They have had to move four times to avoid the police. From 1996 until entering sanctuary in 2007, Mr. Rai worked in the restaurant business, supporting his family by sending home between $500 and $700 every month.
Mr. Rai's path through the Canadian refugee system is tortured. Were the stakes not so high, it could be considered a comedy of errors. His first application was turned down by a single IRB member on the grounds that he had belonged to a violent organization. In fact, he had left that organization when they turned to violence.
Happily, this decision was found to contain errors of procedure and the process was allowed to begin anew. His second application, again before a single IRB member, was turned down on exactly the opposite grounds. It was determined that he had fabricated the entire story about being political active and would not be in any danger if returned.
In his failed PRRA, the CIC official who reviewed his case argued that there was a ceasefire in place between the Maoists and the government, and that stability was returning to Nepal. This claim has been firmly denied by Amnesty International, who continue to ask that people not be forcibly returned to Nepal.
It was exactly the same official who made this ruling that turned down Mr. Rai's H&C application only three weeks later. Mr. Rai's lawyer at the time said he would appeal this gross irregularity within the two weeks allowed, and simply failed to do so. Mr. Rai had absolutely no recourse.
There have been six new cases from Nepal heard in Ottawa since Mr. Rai's PRRA and H&C. In every case, the IRB member found the claimant to be a convention refugee in need of protection. Since 2002, Nepali applicants heard before the IRB in Ottawa have been 100 per cent successful in gaining permanent residence in Canada under the Immigration and Refugee Protection Act as it was judged that they would not be safe to return to Nepal. One of these cases was finalized only two months ago, in March 2008. Like many other of the Nepali cases, the story in this case was very similar to Mr. Rai's situation.
Is there any way you can find that would allow Mr. Rai to show that his case is not unlike those cases, and that he too should have been accepted on the merit of his case? An appeal process would help to standardize the results of hearings. If there had been a second IRB member or an appeal at Mr. Rai's first hearing, the issue of his membership in the UPF could have been resolved prior to the decision being delivered. This would have avoided the expensive judicial reviews, the re-hearing, the PRRA, the H&C and each of the associated requests, not to mention the lawyer's and consultant's fees.
In a final blow, in an appeal for judicial review of the PRRA refusal, the judge hearing the case found no problem with the same CIC official being involved in reviewing both the PRRA and the H&C applications within a month of each other. He also concluded, with reference to the first two decisions, that there is "...no obligation for the minister to explain why their conclusions are different.'' As I said, it is a comedy of errors.
With that as background, let me state that everyone we have dealt with at CIC in these two cases has been helpful and courteous. The difficulty is that they are overworked, understaffed and poorly organized. IRB members appear not to have access to current, accurate and independent knowledge of actual conditions in various countries. The appearance of a democratic process and civilian control of police and the military do not themselves constitute a functioning democracy able and willing to protect its own citizens. Recent events in Zimbabwe clearly show this.
This spring, Nepal successfully held elections to form a constituent assembly that will operate as an interim parliament, prepare a new constitution and, most likely, carry out the plan of the largest party elected, the Maoists, to disband the monarchy and strip the king of any political power. It will likely still take several years for Nepal to emerge as a functional and democratic republic.
Record-keeping and database maintenance within the refugee system is appalling. Again, it is a case for more funding and better staffing. After Mr. Mia was granted a Minister's Permit to stay and bring his family, we came within a few weeks of the permit's two-year time limit actually expiring, due simply to bureaucratic inefficiency. Medical reports expired or were lost. Basic forms were completed two or even three times and requests for pieces of documentation already provided were repeated.
However, the fundamental problem is lack of a true appeal process where refuting arguments can be presented and new evidence considered in the context of old evidence. Individual IRB members make errors, no matter how well trained, and have biases. More than a quarter of the positions on the IRB are vacant and there is a huge backlog of refugee applications to process.
The differences in the acceptance rates of claimants amongst members are well documented. For example, to the best of our knowledge, one of the IRB members in the Mia case has never accepted a refugee claimant from South Asia. Apparently, he simply believes that South Asia is a safe and benign place.
Some IRB members accept more than 75 per cent of the case that come before them, while some have an acceptance rate well under 20 per cent. While recent Nepali cases before the IRB in Ottawa have had an acceptance rate of 100 per cent, Nepalis who appear in Montreal have an acceptance rate of only 50 per cent.
I will not list all the arguments in favour of a proper appeal process. They appear in many places, including the refugee legislation that has not yet been implemented after all these years.
I will close with one further observation. At the front of such an appeal process, there needs to be communication between agencies. The CBSA needs to take heed of ongoing appeals. As it stands, a removal process proceeds independently of any H&C or other process. Granted, documentation can be forged and must be checked carefully. Surely there could be a triage process that says, in effect, first, a judge has ruled that documentation was absent; second, that this new evidence seems to be exactly what was declared to be absent; and, third, that pending verification, the removal process should be put on hold. It would not take more than an hour or two to decide that a piece of new evidence, on the face of it, seems to fill the gap identified in the refusal decision. Simple communication would save heartache.
There must be an appeal process and a regularized method of presenting new evidence as part of the existing case. It should not be dependent on churches and on the minister's compassion. It should not require a large, well-organized pressure group to achieve justice.
There must be additional funding for more staff and a reorganization of procedures. The system is in danger of breakdown. Time spent in searching for lost documents could be better spent processing claims. New IRB members should be appointed as quickly as possible and then be properly trained to fill the scandalous number of vacancies on the IRB.
Pierre Gauthier, Chair, St. Joseph's Roman Catholic Parish, Refugee Outreach Group: Thank you for this opportunity to appear before your committee. Allow me a moment to tell you about a group of dedicated volunteers that I am pleased to represent. For more than 20 years, the Refugee Outreach Committee of St. Joseph's Parish on Laurier Avenue in Ottawa has befriended the newly arrived refugees in Canada's national capital. The usual role of the committee is to carry out simple acts of everyday kindness, providing companionship and guidance and navigating their integration into Canadian society. For refugees in need, we help find living quarters, furniture, warm clothes and jobs.
In 2005, for the first time ever, we took the extraordinary step of providing sanctuary for a most worthy person, Maoua Diomonde. We felt duty bound in conscience to help a refugee claimant who was ordered deported without having had the benefit of a complete, fair and just hearing. After one year in sanctuary and under our care, she was granted leave to remain in Canada. We are grateful that when the full facts of the case were brought to light, the minister saw fit to issue a permit on humanitarian and compassionate grounds.
However, this is an important point for you to consider: a church congregation should not be put in a position where its only recourse is to provide sanctuary for refugee claimants. Churches have been put in the invidious position of offering sanctuary because the refugee determination system is not working properly. Clearly, when a valid refugee claimant has to turn to a church for help, there is a problem with the system.
I sometimes wonder what happens to persons who are not lucky enough to find a champion who is willing to take up their cause. They are summarily removed to their fate in the uncertain and troubled land from which they fled.
All of us here today, I am sure, want the system to be fair and just and to operate with more efficiency. From our experience, the absence of an appeal process is a major flaw.
Our refugee claimant lived under a removal order from Canada without having had a real, viable access to appeal. Our only option, while we brought the case to public attention, was to offer sanctuary. Many uncounted numbers of other refugee claimants have been turned away from Canada because they had no access to an appeal process. We hope that the lessons we have learned from assisting Maoua Diomonde may assist your committee in improving the refugee system.
In late March, 2005, the First Unitarian Congregation of Ottawa approached St. Joseph's refugee outreach committee looking for assistance with a refugee claimant who had not received a full and fair hearing to have her claim determined.
Lisa Barnet, Member, St. Joseph's Roman Catholic Parish, Refugee Outreach Group: Here is a bit of background about Maoua Diomonde. She was an elementary school teacher in the Ivory Coast during a period of upheaval. In December 1999, there was a military coup d'etat. That was followed in October by elections, wherein the military general was defeated. Notwithstanding this defeat, he remained in power. The opposition leader at the time, who was of Burkina Faso origin, called for a demonstration to protest these facts.
During this time, Ms. Diomonde was continuing her work as an elementary school teacher. She worked in a poor area and was faced with many students who were unable to afford school supplies. She assisted in putting together a cooperative of mothers who would raise funds in order to purchase school supplies. These women were of Burkina Faso origin, and her association with them was enough to arouse suspicions that she, too, may be of Burkina Faso origin. That, coupled with the fact that she was injured in the demonstrations earlier in October that we had referred to, brought her under suspicion of being involved in the opposition. She received death threats and warnings to cease any opposition affiliations and was warned to go home to Burkina Faso, when she was actually from the Ivory Coast.
Rumours at this time were developing that the opposition was going to stage a coup, and on May 16, 2001, in this time frame, Maoua was attacked and raped in her home. Her niece and nephew were living with her at the time. Her niece was also assaulted; she was raped as well. Her nephew was abducted and taken from the home.
Ms. Diomonde then fled to the U.S., where her then husband was studying, and they both made their way to Canada and made their claim before the Immigration and Refugee Board for refugee status. Without going into much more detail about her case, for a number of reasons we found that the IRB hearing was flawed.
First, her claim and her husband's claim were heard together, notwithstanding they had completely different claim status. Her husband was claiming religious persecution from Senegal. Second, her husband was present for the hearing, notwithstanding they were going through a separation and divorce at that time. The reason they were separating and divorcing was that he viewed her rape as somehow her fault, which impeded her ability to testify before the board with him present.
Third, because it was tied with her husband, the language of the hearing was English, and her first language is French. When she came to Canada, she spoke very little English. However, the IRB hearing was conducted in English. Based on that hearing, the IRB ruled that she had not been raped, and, consequently, deportation proceedings were put in motion.
Our committee, the Refugee Outreach committee, became involved in this case about 12 months after this decision of the IRB had been made. Already, Maoua was well into the process of her removal from Canada. She had been unsuccessful in her PRRA ruling and had filed an H&C application with the minister. Unfortunately, as it takes so long for the H&C application, it would not have been reviewed in time, as she was scheduled to be deported long before an H&C determination was expected.
The Refugee Outreach committee obtained a copy of this medical certificate that a doctor had prepared. When she was raped, and before fleeing, she had visited a doctor who had done an assessment and detailed the assault. It was corroborated by the scars. There were not many physical scars left, but those that were were corroborated by a Canadian doctor. This new evidence could not be put forward before the Federal Court, which refused to grant leave for a hearing.
There was no other appeal process open to Maoua. We made the very difficult decision to take her into sanctuary.
Jan Raska, Member, St. Joseph's Roman Catholic Parish, Refugee Outreach Group: For twelve months, we placed her case before Canadians through the media. We held demonstrations and petitions supporting her need for fair and just treatment. We obtained a ruling from the Official Languages Commissioner, which confirmed that her language rights had not been respected. Our decision to take Maoua into sanctuary turns out to have been the right decision, and she was granted refugee status on humanitarian and compassionate grounds.
Having in place a refugee appeal division would not have provided a solution to all the procedural errors which were apparent in Maoua's case. However, it would have provided Maoua with a case review, with written submissions made in the language of her choice and with, it is hoped, a better understanding of the political circumstances unique to her situation and not that of her husband.
Nevertheless, we remain troubled by some of the aspects of the RAD; namely, that it does not allow for the procedure for the introduction of new evidence or relevant information. While we are not advocating for a complete rehearing, should new evidence become available, it should be admissible as it would be in any Court of Appeal.
Refugees do not know their rights under Canadian law and do not understand our society's processes. It is the responsibility of both our institutions and our citizenry to inform and protect them.
As Canadians, we are proud of the generosity of our country and government for accepting and sponsoring so many refugees every year. Canada is recognized in the world as a generous country that does a lot for the most vulnerable and dispersed victims of persecution and conflict in our world. We have been proud collaborators in society's efforts to help many refugees who come to Canada. We are conscious, however, that we are also human. We are not perfect. No system is foolproof and errors do occur. These need to be corrected. Any system that does not have a mechanism for correcting its errors would fail the responsible test of natural justice.
Please assist us in making our system better and allowing, even if only on a limited basis, for the opportunity to introduce a mechanism for correcting errors in the system. We ask that you please pass Bill C-280. Thank you for listening to us and inviting us here to discuss these issues.
Senator Jaffer: Thank you all for your presentations. When you said, "Please assist us,'' that is very humbling. It is you who are assisting us. It is we who have to thank you for understanding and assisting us.
The cases you have presented are very moving to us. It certainly brings a face to what is sometimes forgotten; you think of numbers and statistics. You have brought this home to us. You are assisting us and not the other way around, and we thank you.
Since there has not been an appeal process, it has been my impression — and please correct me if I am wrong — that unfortunately the churches in our country have been forced to go into the sanctuary business, which is not the job of the churches. I am aware of what you do to help refugees settle and bring their families, but you should not be in the sanctuary business. Would you educate us as to what kind of strains this has put on the churches?
Mr. Gauthier: To speak for what happened at St. Joe's, we mobilized about 75 volunteers. Twenty volunteers operated this woman's business in order to keep revenue coming in to pay for the bills she had amassed over a year or two of paying for inadequate legal services. We paid for an appeal to the Federal Court that we knew, even before we started, would fail and felt was a waste of time and money, but we needed to be in a position to say that we had exhausted all legal recourses available to us.
We put on a fundraising event that was attended by over 200 or 300 people, and we raised a pile of money to pay off the bills. That is not what we are about, to help Canadian society correct problems when we have the means and the intelligence to do our own homework and make our laws function and our systems and processes compatible.
I cannot understand how a removal process starts when the minister and the department pretend that an H&C application is an appeal step. They remove them even before it gets completed. Where is the reality of an appeal in that procedure?
Mr. Nagy: In our case, we were somewhat frightened, in the first few weeks of Mr. Mia living in our church, to have limousines with red plates parked outside, watching us. As a result, we organized a 24-hour presence in the church, involving well over 100 volunteers who took turns sleeping in the building so that Mr. Mia would be safe and feel safe. For the first several months, we were also concerned that the RCMP might burst in through the door, but we were assured that that would not happen.
It is very draining. It is not an easy decision to make. It wears the committee and people out. It has been a strain.
Joan Auden, Member, Hitschmanova Committee, First Unitarian Congregation of Ottawa: I will state that it is a strain. On the other hand, there is a lot of good that comes out of it. There is a sense that we have done something very important, even if it is just for one person. In our case, Mr. Mia was our first, but we now have a second one in sanctuary who we feel has also taken a strain. When Mr. Mia came in, we did not know the number of hours and the kind of skills, et cetera, that we would need in order to work our way through the system.
We knew when Mr. Rai came in what we were facing, and we still did it. We do not take someone into sanctuary lightly. We go through their case; we look at it carefully. We need to trust the people who are referring these refugees to us. We ensure that they are not criminals and that they have a case worthy of our attention, and worthy of the entire amount of volunteer time it will take.
There is good in it because a congregation will come together. We are a congregation of 550 people, and we had 150 volunteers both times. They do not stop, because they get to know this person very well. They know their case, and they know we are doing the right thing. We have a moral responsibility to care for someone who would be hurt if returned to their country.
Mr. Nagy: We have, in fact, turned down a number of people who have approached us to come into sanctuary. We do not do this lightly.
Senator Jaffer: Do you have any idea how many people across the country are seeking sanctuary?
Mr. Gauthier: The cases that come to our attention are refugee claimants who have arrived in Canada and have not been approved or selected from outside the country. It is difficult for us to even know who they are when they first arrive. We collaborate with institutions such as OSISO and CIC, the Catholic Immigration Centre, to identify these people, help them and offer them support.
We are not a bureaucracy. We cannot count the heads. We just know that, similar to our brothers at the other end of the city, we have refused to look at other requests because the time frame was not adequate for us to make an honest and realistic appraisal of whether the case had merit before the removal took place. I will tell you, it puts you in an awful moral dilemma to think that just because you do not have the time to study a case, someone may get killed. To receive that kind of request is sobering.
Ms. Auden: Some of the cases come to us because of our reputation for helping refugees in the past. Some of those actually did not know their way through the system, and we have been able to help them get through the system in another way. In the last two years, I guess, we have had two that are obviously not refugees. We should not, as a church, be in the position of trying to decide whether or not someone is an actual refugee. This should not be our responsibility, but we take it on because of the moral dilemma that we face.
Senator Di Nino: I was driven to smile when I heard some of you speak, particularly Mr. Gauthier. I was doing what you were describing in the 1950s and the early 1960s with immigrants coming from Europe. It is interesting to read about looking for a place to live and finding them clothes and so forth. I applaud both of you for doing that. It is truly heart-warming when we hear what you folks are doing.
Having said that, there is one question I would like to ask both of you because I think both of you touched on it. You talk about the implementation of this provision of the bill called the RAD. In effect, both of you said, "Implement it, but you need to change it so that you can receive new evidence.'' There is a general misunderstanding out there in that the implementation of this provision is just a review of the paper that was presented, or of the file. It does not include any further interviews or new evidence. That leaves me asking, how do we do that? Frankly, we can have sympathy for what both of you are saying, but when we get down to our jobs, we have to deal with reality. Unless we approve every single individual who claims sanctuary in Canada, there will be some who will say we did not treat them right, and in some cases it may even be so. How do we deal with that?
Ms. Barnet: What we are looking for, first and foremost, is the introduction of this legislation to get an appeal division in place. However, we do see room for improvement, and one of the factors is the introduction of new evidence. This is common in our court system. There is a threshold for the introduction of new evidence. In many instances we are dealing with people in other countries, and it is not possible to get the evidence required until a date after the hearing. That is part of our test for the admission of new evidence. To me, it does not seem to be any sort of a stretch or a clog to the system. In fact, it seems a normal part of the judicial process to allow for the introduction of new information and new evidence in those cases.
Senator Di Nino: This particular provision will not help that. Five immigration ministers — the current one and the four previous ones, from two different parties so this is not a political issue — have all said that this particular provision will not help the situation. It is just a feel-good thing. It will not resolve the problem that you folks are talking about. Do the five immigration ministers not understand what the issue is?
Mr. Gauthier: I am quite aware that there are five ministers who have failed to acquit themselves of their responsibilities. To me, a minister of the crown is responsible to Parliament. When Parliament has passed a law, I do not think it is the discretion of a minister to say, "I do not think this is a good law.'' It is the role of Parliament to determine that.
As members of the house of wisdom in our parliamentary system, you need to remind the minister of his responsibilities, and the whole ministry of its responsibility, and that is to implement this imperfect sandwich that we have. At least get it started so that someone can have lunch and may be saved from dire consequences.
Mr. Nagy: You said it was a non-political issue. In a sense, you are right. It is a budgetary issue. I believe the last several governments have, in effect, said that this is not high enough on their spending list to make it worthwhile. In our view, it needs to be higher. We are dealing with human lives.
Senator Di Nino: I think I will leave it at that.
Senator Goldstein: Thank you, each of you, for appearing. Thank you, especially all five of you, for the passion and the commitment that you have displayed and that you continue to display. As a very preliminary question, what does Hitschmanova mean?
Mr. Nagy: Lotta Hitschmanova was the founder of the Unitarian Service committee.
Senator Goldstein: I thought it was some sort of word for sanctuary, and I was obviously wrong about that. You know, of course, that sanctuary is a biblical concept and is mentioned in the book of Samuel. The Hebrew word is the same as "shelter'', which means that the person seeking sanctuary was also given shelter. The sanctuary concept was absolute. No one could break in. You feared for the RCMP to break in. The sanctuary process simply precludes anyone from breaking in or using force to remove the person seeking sanctuary, which includes people who had committed murder and who had been convicted of committing murder. That was the concept in those days.
I will deal with a particular concern raised by a number of us and a concern that both of you raised in your very excellent and moving briefs. Both organizations have said, in different circumstances, that the appeal procedure would permit the introduction of new evidence. That is not the case in the way that the statute is presently drafted, and we are not here at this point to change the statute. We cannot do that. We are just here to deal with the implementation of three of the provisions that have not been implemented.
The appeal provision is based on the written record without lawyers being present and, indeed, without the parties being present. The possibility of new evidence arises solely on the pre-removal risk assessment procedure, and can arise when humanitarian considerations are taken into account by the minister. Given that fact, would you nevertheless want the appeal procedure, with all its imperfections, to be implemented, recognizing that it is only a partial solution to the problems you have raised?
Ms. Auden: One of the things needed is an ability to provide the evidence that was lacking in the first hearing. If they say there is no evidence of medical certification, there is a need to be able to present that evidence at some time.
My point always is that the best thing you can do is to have a very good first hearing, which means trained judges, lawyers who have all the evidence in, and the ability to turn back someone who comes in without enough, or the proper documentation, and turn back to the lawyer or the consultant and say, "This is not adequate; you will have to come back at another time with adequate documentation.'' If you have done that, then the second reading of it would be fine.
We are also working with another Nepali who is in hiding, and his PIF was 14 lines, compared to six pages of another who had almost the same story, but a lawyer decided that it was not important to put all that other stuff in.
There is a problem right at the beginning. We have to be assured that the documentation that is there is adequate, and then there would be an adequate re-reading.
Mr. Nagy: It is equivalent to an official saying, "Can you document that your son was beaten?'' or "Can you document that you were raped?'' There should be some time allowed to get the documentation rather than saying, "The evidence is not there. Here is your plane ticket.'' That is the situation now.
Mr. Gauthier: Implement the RAD as it is. I have enough confidence in the competence of our Parliament that, if a correction needs to be made later on, another amendment can be made and passed. Let us do something, even if it is not perfect. Let us get the ball rolling so that we protect maybe 30 per cent of those who are denied and who have a legitimate claim.
Senator Goldstein: Do I have another moment?
The Chair: You have one more question.
Senator Goldstein: Thank you. The bill as presently drafted does not make reference to section 73 of the Immigration and Refugee Protection Act; that is, it does not put into place a right on the part of the minister to appeal. That has been left out of the bill.
Would you think it appropriate for there to be an amendment to that bill done at this stage in order to give the minister as well a chance to appeal a decision which the minister considers to be inappropriate?
Ms. Barnet: I would not advocate that if it would slow down the advancement of this bill. I think the focus is to move forward on Bill C-280. If another bill needs to be brought forward and if the minister wants to push that clause forward, that is always the minister's option.
In my mind, it would slow down the progress of this bill. I think our focus should be to get this measure implemented.
Senator Goldstein: Are you suggesting that the minister could simply implement section 73 without being forced to proceed under this section?
Ms. Barnet: My understanding is that the relevant section has passed both Houses. However, it has not received Royal Assent and been put into effect. With a swipe of a pen, it could be put into effect.
Senator Goldstein: That is my understanding as well. Thank you.
Senator Lovelace Nicholas: Thank you. I also admire the work you have been doing. You had mentioned that you make sure criminals do not come to the church for sanctuary. How do you find out whether a person is a criminal? Must you do a background check from their country and, if not, through what means do you perform such a check?
Ms. Auden: We check on what has already been found through the process, through the lawyers, et cetera. We may make a mistake at first. If we do, we have to correct that. It is possible.
Senator Lovelace Nicholas: My second question is: Who refers these claimants to come to the church to seek sanctuary? Does someone tell them they should go to the church, or is it their last recourse?
Mr. Nagy: Both. It is their last recourse. In the first case of Mr. Mia, the person I refer to as his "rescuer'' is a Bangladeshi Canadian who had a function at the Bangladeshi High Commission. He was approached by Mr. Mia and was asked, "Can you help me?'' He helped him. He escaped by begging for his shoes so that he could get a hair cut. He managed to get out and go into hiding. His rescuer hid him in his mother's house for a month or so. Ms. Auden, do you want to add more to that story?
Ms. Auden: They helped him to claim refugee status. That is how that worked. His lawyer also helped, as well as a well-known international organization here which knew him and helped him come to us prior to the minister.
Every case is different. If you look at the 10 in sanctuary across Canada right now, you will find that every single case is different. They have different needs in terms of what their problem is.
Senator Lovelace Nicholas: They have different backgrounds as well.
Ms. Auden: That is right.
The Chair: Thank you. I have a question but I understand Senator Munson also has a question.
Senator Munson: I do not have a question. Being a United Church minister's son, I understand the word "sanctuary.'' I will leave it like that because we will be seeing the Minister of Immigration and Citizenship tomorrow. That will be the end of allowing others a second chance to talk about their case and why these five ministers did nothing. We will give them sanctuary tomorrow to do what they have to do.
Madame Chair, let us get on with the job — vote on this bill and get this done. I did not even know about this proclamation business that Mr. Gauthier spoke about until a few weeks ago. You go through this whole process.
I have only been a senator for four and a half years. You go through this whole process. People have these debates. As some people say in Atlantic Canada, some "buddy'' comes up and says, "I am the boss here. All the things you have done for the last five or six months are moot. Sorry, we will not proclaim anything.''
I think it is time we give others a second chance and give them sanctuary. I hope we can pronounce on that soon enough.
Mr. Gauthier: I wanted to add to something Senator Munson has said. I think it is almost a disrespect of Parliament to ignore the laws. I can understand the discretion of cabinet to withhold articles from being implemented precipitously so that a proper bureaucracy can be set up and services put together so that we can carry out a job well. However, five years is more than time enough to do this job. I cannot understand how five ministers in a row neglected their responsibilities before the Parliament of Canada.
The Chair: As a committee, we hear all witnesses and we give due diligence and respect to the testimony. Thank you for your testimony. We will continue until we complete hearing from all the witnesses, which will be tomorrow.
I have a question. Both of you started your presentations by saying that you were put in the position of having to provide sanctuary because the appeal process was missing. However, as you talked and as we dialogued, it seems to me that if we put in the appeal process, you will not stop taking your option of sanctuary. Is it correct that you will keep that option open to yourselves?
Mr. Nagy: Morally, we must.
The Chair: I want to be sure on the issue of sanctuary. You seem to say in your evidence that if you had the appeal process, there would be no need for the sanctuary part. As we started to talk, I had the feeling that there would be all kinds of other reasons why you might still want to give sanctuary. You are not here today saying that, if we pass the appeal process, you would stop providing sanctuary, is that right?
Mr. Nagy: I cannot speak for all the churches in Canada, obviously. I can barely speak for our own.
I think we would have to morally reserve the right if we saw a blatant injustice. If we saw the process in place, there would be far fewer blatant injustices.
The Chair: I just wanted that clarification. Thank you for being patient with us and staying until this late hour. We appreciate your coming and putting forward your position on the bill and on a lot of other immigration issues to which we need to pay attention.
I must say I grew up in Saskatchewan and I think at that time Lotta Hitschmanova was a name that every school child knew. Clearly, Senator Goldstein and I need to talk. Nonetheless, we do have Catholic parishes, so I want to give due notice to both.
Thank you for your humanitarian concerns here today. We are adjourned until tomorrow.
The committee adjourned.