Proceedings of the Standing Senate Committee on
Human Rights
Issue 6 - Evidence, June 3, 2008
OTTAWA, Tuesday, June 3, 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 3:33 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, we are here as the Standing Senate Committee on Human Rights to study Bill C- 280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171).
We have as a witness at this time the Honourable Joe Volpe, former Minister of Citizenship and Immigration. Mr. Volpe, thank you for coming to the committee. We have heard that the task of being a minister of immigration is not an easy one. It carries a lot of responsibilities and many issues. We are pleased to have you here to provide with us information with respect to this bill.
I do not know if you have an opening statement. If you do, please proceed. I will then turn to senators for questions. Welcome to the Senate.
Hon. Joe Volpe, P.C. M.P., Former Minister of Citizenship and Immigration, as an individual: Thank you for those words of introduction. You are right, perhaps the most difficult position in cabinet is that of Minister of Citizenship and Immigration. It is also a good and challenging one and satisfies those who think government fulfills a larger purpose than the one of day-to-day management of certain files. I found myself being in the position of being the minister of a very dynamic portfolio. By that, I mean that it was prepared to change and it was preparing to meet the challenges of tomorrow from a demographic perspective.
[Translation]
I can continue in French, because I do not have anything in writing. I would simply like to tell you my positions in the past and my current position, as an individual.
So, if I may, I will tell you and briefly explain the reasons supporting my position, which have not changed in the least.
[English]
The RAD was the focus of Bill C-280 when I was minister. I thought of it as part of a comprehensive position for the minister, in my case, and his or her department, in someone else's case, in addressing the demographic challenge of Canada. It was not to be separate from everything else, although we have a tendency to think about the refugee determination process as being something quite different from immigration.
I know you know all this already, Madam Chair and honourable colleagues, but the refugee component of the immigration plan comprised approximately 15 per cent of the grand total. It represented 15 per cent of the 40 per cent that went into family class, with 60 per cent being the focus on the economic category as per public policy. That changes, perhaps, with a change of minister or sometimes with the change of government. Public policy demanded 60 per cent in the economic category; 40 per cent in family class. Of that 40 per cent, 15 per cent would be for refugees.
I say that because there is a lot of focus on backlogs and how to deal with them. Let me tell you my approach when the issue of the RAD came to me. The RAD said that we needed to do this because the changes to the Immigration and Refugee Act were predicated upon an agreement that people made with stakeholders in the community. Therefore, this would have to happen. I said, "That is fine.'' I try to live up to other people's deals and negotiations, but I knew that there was a process also put in place that said "Upon review, let us see what happens.'' I asked, "Most importantly, what are the dynamics?'' The dynamics are twofold: Either the RAD, or proponents of the RAD, was able to increase the numbers of refugees that would be landed in Canada or they would be more interested in ensuring that the process would have the appearance of greater fairness.
I say "greater'' because the people that I consulted, those from the United Nations responsible for refugees, liked to think of Canada as the premier example of a system for refugee determination that underscored fairness and product. In other words, we would meet our targets but we would do it fairly and there would be a process in place for those who had failed the process that had been put in place.
From my perspective, as the person responsible for the administration of the department, I wanted to ensure, first, that we could eliminate a backlog; and, second, that we could always meet our international commitment, which was to ensure that we would have approximately 15 per cent of our immigration total be met by recognized refugee applicants.
If I might digress for a moment, from my perspective, the refugee applicants were again divided into two: Those who met the criteria abroad and, therefore, went through a filtering system through the United Nations; and those who landed internally. The numbers of those landed abroad or qualified abroad used to be like this and those landed here at this point. I realize that you cannot see that in print; however, by the time I became minister, the numbers had actually reversed.
We were expending a lot of material resources in ensuring that the inland applicants were landed within the constraints of 15 per cent and, at the same time, we were spending fewer and fewer dollars in doing what the humanitarian aspects of our policy dictated we do in an international context. I wanted to bring the two closer together. I said, "Let us look at the numbers of refugees. If I am going to immediately implement the RAD,'' and I was not about to because the test period had not been met yet, "on the number of refugees, what would happen?''
I know you have the numbers already, and in my mind they are not precise, but the year I was minister, the number of refugees landed under both categories was the highest within the 10-year period leading up to today. I think we were at about 35,700 and change. As a reference point, in the year 2001, there were approximately 8,000 less, in other words 27,000. The year preceding my entry into the portfolio, 32,000 plus had been landed. I saw the number of refugees landed increasing. I said, "Under one category, there is no urgency to implement the RAD.''
I looked at the other category, and that is whether there was a process in place so that people would be treated fairly. That would mean one would want to give applicants in the refugee system an opportunity to enter Canada with the same kind of rigorous fairness that would be applied to everyone else. As I said, it is all comprehensive — an immigration plan to meet Canada's demographic challenges and to meet Canada's human resources and labour market needs. "Under process,'' I said, "An applicant comes and gets a hearing at the IRB, may be followed up on failure with a pre-removal risk assessment, can be followed up by a judicial review — Federal Court, and can be followed up by humanitarian and compassionate risk assessment. What will the RAD do to those four levels of opportunity to have a case reviewed positively again?'' Of course, the answer is, "very little.'' Even though the legislation said the RAD looked at law and process, the fact of the matter is you really had someone review all of the material and say, "Well, there is a case for doing something different.'' In other words, there really was not new material, so we were going to add a fifth element to a four-element process addressing only the failures.
I then said, "I will wait until there is a definitive indication that things have changed for the worse.'' As the numbers that I gave you indicate, we were actually landing more, and if that is one of the objectives of those who would propose the RAD, then we had already met that objective. There was an 18 per cent increase over the previous year. The backlog had gone down to a manageable level of 25,000 and was dropping. I do not want to be partisan, but I ask you to look at the numbers of what happened since. You can draw your own conclusions.
You asked me to come as an individual to give you an indication of what happens in the thinking of a minister who wants to review the immigration system as part and parcel of a demographic program for Canada, of which the immigration policy is the most important. There you have it. That is the reason I said I would not implement it. Of course, we got into an election so I could not change my mind. When Bill C-280 came forward, I did not see any compelling arguments to make me change my mind.
Senator Di Nino: Thank you, and welcome. I was going to call you minister, but I I guess an ex-minister is still a minister.
Mr. Volpe: Once a priest, always a priest.
Senator Di Nino: I am not sure I would make the same comparison.
Mr. Volpe: One is holy; the other one is not but they both fulfill a useful function.
Senator Di Nino: As you know, a variety of different people do not agree with the position of some of us, including the position that you and I have, on the value of this. You and a number of your colleagues have actually said in the past that the promulgation of this provision would not result in a speeding up or a serving of the needs of refugees. Are you still generally of the same opinion?
Mr. Volpe: Thank you, senator. I am not sure that you and I have the same opinion because I do not know what your opinion is. Mine is that Bill C-280 did not address the concerns that I had expressed in my introduction. I had said that during my time, the numbers had gone up to land at 35,700 and whatever, and the previous year it was about 3,000 less, and in the 2001 it was actually about 10,000 less. Those people who used 2001 as the reference point because of the passing of the legislation were, in their assessment, not looking at what had happened. If their objectives were to land more refugees, that was already being done. There had been close to a 40 per cent increase. If their objectives were to make the system fairer, I would have to ask for a definition of fairness. Certainly in terms of a process that made the entry into Canada legitimate within the rules, then I think that that was already being accomplished by the four steps that I outlined, and I did not think the fifth one would enhance anything.
Senator Di Nino: One reason that at least one of the former ministers gave for not implementing the RAD provision was that the backlog, which was too large at the time, would not be well served and that, in effect, it would probably make the backlog worse. I think one of the ministers said it would bring the whole system to a halt. Seeing that the backlog is even larger now than it was then, would you feel that is still a concern that we would have to be aware of?
Mr. Volpe: I tried to point out in my presentation the reasons for the backlog developing or why it would exist. There are various ways to deal with the backlog. Again, my numbers are historical, so they are easily verifiable. The ones current today are numbers that are developing, so I am not sure you can put as firm a handle on them.
Forgive me for repeating this, but one of the reasons for having a backlog is you would have more applicants appear on the scene than you would have space for. As long as your public policy says 15 per cent and your target number is 250,000, you can take 15 per cent of that and that is all you will work with. If your number drops to 230,000, that 15 per cent becomes less, so your backlog increases. Another reason is that the system you have in place is not processing as many applicants in as efficient a way as possible. In other words, you are not meeting the 15 per cent.
If you are not meeting the 15 per cent no matter the overall total, then it is a staffing issue. I ensured that we had appropriate staffing in place, qualified people who met the rigours of an assessment that the people from the IRB would say is objective, so we had staffing that was commensurate with the demand. I cannot speak to the staffing today. I can only repeat what is out there in the public domain, and that is that the process itself does not have the people it might normally have, and that would be a reason for the backlog.
I cannot speak to the people who are part of the larger immigration plan because I am not sure whether the target number has gone up or down.
Before I left, we had put in a place a plan that would be at least a five year plan that saw a gradual increase up to the last year, and we had sufficient funds for it. One reason the immigration department has so many challenges is that, when I went in, it had an annual budget of approximately $850 million, and part of that went for immigration and refugee determination. We had to maintain approximately 90 offices in 73 countries. It is a difficult process. The department got cabinet to give us an additional $2 billion, approximately, over a five-year period. That tripled the dollars available, so we had the resources.
I cannot speak to what happened to that money. About 40 per cent of it was for integration and settlement, which would have gone in part to maintaining the infrastructure for integrating the refugees. The rest would have gone to making the system much more efficient and responsive while the numbers were increasing. Again, I do not know what happened to that money. Government members will have to answer to that.
Senator Di Nino: During the time you were the minister, you were responsible for efficient operation. Were those who came to us under the umbrella of refugee served effectively and efficiently? Were any problems created that we could not solve with the legislation we had at the time?
Mr. Volpe: I will tell you the four levels available to failed refugee claimants. I always dealt respectfully with people who advocated for refugees. Most of them have a philosophical attachment to this work and believe it is the right thing to do. I do not disagree with them, but there are 10 million people around the world who could fit into the category of refugee. There are approximately 150 million migrants. From a very objective perspective you would consider how you put the 10 million in the context of the 150 million.
I do not know how many others were there. My view was that Canada has a human resource and a labour market need as well as a demographic need for expansion of the country which dictates that we go after the people who want to leave their home base and come to Canada to create a new society. I believed that we had to ensure that we had the resources and a department that was willing to do that. That is why I said in my opening remarks that the department was in a state of dynamic flow in that direction.
The challenge for me was to get money from cabinet. Happily, I succeeded. I did not get as much as I wanted, but I got a substantial amount.
To address your question about whether we had the resources, it appeared that, after months of negotiating to relate resources to priorities, we had what we needed to meet the demand. The people from the IRB were happy because I was giving them the personnel they needed to address the issues and I was giving them the rationale that would serve as a context for making a decision that I hoped would be positive, as well as giving them the flexibility of numbers, because the number was increasing. You cannot say, "Give me more, but cap it at 15.'' That 15 is a reflection of a larger number.
Senator Di Nino: We have suggested to people who would like to have this legislation passed that the current minister and four previous ministers of immigration were of the opinion that the RAD is not necessary and that the system works fairly efficiently now on behalf of those seeking refugee status. We have heard some pretty strong comments in response. Yesterday, a couple of witnesses said, in effect, that all these ministers have shirked their responsibility as ministers and have ignored the will of Parliament. How do you respond to that?
Mr. Volpe: I suppose I could take personal offence to that. I do not want to speak to the intentions of colleagues who preceded or succeeded me, so I will speak only for myself. At the risk of sounding self-indulgent, I developed a consensus with the department about where it was going. It did not happen overnight. There were challenges that we both met, and we developed a working relationship that suggested that we were moving in tandem for the development of public policy. I do not know how one can claim that a minister is shirking responsibilities when he or she has the department working toward the objective of increasing the number of people who you think need to be helped.
Immigration is not really about helping someone else; it is about developing your country and using people who may be in need of assistance to further your very self-interested national objectives. I thought that we were increasing the numbers. I gave you the numbers and probably understated them, but you can verify them. Statistics Canada will give them to you. If you go beyond people's expectations, how can you be shirking your public duty?
Senator Munson: Welcome, Mr. Volpe. Why would it not help to give a refugee one more chance? There have been inconsistent rulings. People have been sent back when perhaps they should not have been sent back. Do we tell the Canadian Council for Refugees, the Canadian Bar Association and the others groups that have appeared before us that they are wrong?
Mr. Volpe: I was asked that question when I was minister as well. They thought the IRB made the wrong decision. They thought the pre-removal risk assessment repeated the wrong decision. They thought that the judicial review repeated the same error. They thought the minister and his department, in having a humanitarian and compassionate risk assessment, repeated the same error. What do they think will make the RAD change that decision?
Senator Munson: From their perspective, it is a sense of fair play and justice, as you spoke of earlier.
Mr. Volpe: Why stop at five and not go to six?
Senator Munson: If we do not do anything now, is it all good? Is the status quo good?
Mr. Volpe: You are asking me to speak about my experience as a minister and as an individual. Where the government stands today is a different question, but that is not why you asked me to come here. I dealt with issues of people who came into the country and claimed refugee status, and the accusation by others who did not share the CCR's position was that they queue jumped and that there were many other people who had an equally legitimate right to entrance into Canada.
It is all a question of perspective. What is "fair''? Is fairness dealing with the application of someone who wants to come to Canada, or is fairness associated with people who are in a deprived position and find themselves in Canada and want to stay here?
A safe third country agreement intervened and came into play. It was difficult for many people to justify rushing to add another opportunity for someone who was in Germany, for example, failed a refugee claim there, or perhaps did not file a refugee claim there, hopped over to France, found his or her way to the United States, and then made his or her way across the border, to claim to be a genuine refugee claimant.
The idea was to try to ensure that we would deal with those who were legitimately here in the country and who had not gone through the United Nations process — one that we supported and we funded — in an expeditious fashion.
I went through those four. The RAD was a fifth. We could add a sixth or a seventh. However, if the answer is negative the first four times coming up, who are we talking about in terms of fairness? Are we talking about the person who filed in Beijing and has to wait forever because the target number for Beijing is considerably lower than the number who actually applied?
Senator Munson: Thank you for that. I just have one other question. Mr. Volpe, the Canadian Bar Association and others who appeared before us talked about what they feel is an abuse of the parliamentary system. By that they mean that we move through this whole process of a piece of legislation, a debate happens and it goes on and on. This debate has gone on for many, many years.
When it finally reaches that little point at the end where the Refugee Appeal Division aspect has to be proclaimed — has to become law — the minister has the right to say, "Whoops, I do not have to do anything.'' From their perspective it is contrary to the rule of law for statutory provisions to be set aside at the discretion of the executive.
In other words, there was a plea last evening from churches and so on — from people who have been through this whole process. When they think they might have it, the hook comes: All the things they have done and all that debate does not mean very much it end of the day. The minister or the executive power still has the power to say, "No, sorry. It cannot be done.''
Mr. Volpe: Someone would say that in the context of Bill C-50 today. However, quite frankly, a much more objective position is that power left with the executive branch is still very much a part of the parliamentary process.
I am not here to defend the government; far be it for me to do that. I ran on a platform that was completely different from the current government's platform. However, the public had a different view. Instead of being Minister of Citizenship and Immigration, I am here as an individual reflecting on a historical fact.
There are political scientists, other lawyers and judges who have an opinion but it is that: An opinion. It is a welcome opinion because it enhances the debate but, in the end, someone has to make a decision.
I do not like some of the decisions that the current government is making. However, I cannot say it is not part of the democratic process. It is part of the democratic process. You wanted them and you got them. Now you deal with it.
My job is to ensure there is always an alternative. You are asking me about what I did when I was there.
Senator Munson: Thank you.
Senator Jaffer: Thank you for coming and explaining things to us. The comprehensive way in which you were approaching a very difficult task has been very educational. I was struck by how you spoke about numbers. Also, I was struck by how important it is, and rightly so, that you were setting out how important it was that we have a strong employee base upon which to build Canada.
One thing I would like you to address is our international obligation to protect refugees. I am sure you had implied it though you did not address it outright. I know you spoke about 15 per cent and it is interesting, I had never heard of it that way.
We have an international obligation to have a fair process. Canada, Italy and Portugal are the only countries in the industrialized world, as you know, that do not have a second appeal process. I would like to hear your comments on our international obligation to protect refugees.
Mr. Volpe: Madam Senator, I have to disagree with the assessment that we, along with Italy, Portugal and another I cannot remember, are the only ones that do not have a second process. I outlined four.
I thought we were fulfilling our international obligation. I must hasten to add that you are asking me to give you a historical perspective. Therefore, I do not want my statements to be misinterpreted as speaking to the government's current position.
We were part of — the only non-European nation to be part of — an international assessment of where we are in terms of human rights index with respect to immigration. We did not fare too badly because of two initiatives that my department and I put forward in 2005 on which we got full marks and for which we are applauded everywhere. I mean "we'' as Canadians.
One of them is that we are in full compliance with our international obligations with respect to refugees. My personal view was that we should spend more of our resources in identifying refugees abroad. In other words, let us use the international bodies that we sustain to provide us with the qualified people who are actually in harm's way, to put in a non-diplomatic way. For example, are all those poor people who suffered in that earthquake in China refugees? Well, there would be some people who would say they ought to be considered such.
However, until you have a body or an institution in place that makes a determination, you are faced with the alternative of someone coming to your door, knocking and saying, "Here I am and I am a refugee.'' How do I determine that that is more valid than the institution to which we all belong in terms?
I wanted us to start thinking in terms of rebalancing the numbers so that we would have more determination in situ as opposed to making determinations at our gate. In part, the questions you see amongst your colleagues — you are asking particular perspectives — would suggest that we do not have uniformity of view on how to deal with people who want to come into Canada.
I was determined to don a hat that always said that anyone who knocks at the door has an application to come to Canada, whether it is there in paper or it is implied. If we think of them as individuals who want to make a contribution to Canada, then we have an obligation — not just internationally but domestically — to ensure that that is always a bona fide application.
There are some people who are obviously in greater need. My heart goes out to them just like everyone else, maybe even more so. However, you cannot justify spending, I do not know, many tens or hundreds of millions of dollars in being part of a UN process to determine or screen in applicants and then say, "Forget that, we will give that money. However, we will short-change that part of the process where people make their way here.''
How can they get here, madam senator? They cannot walk here from some place else, unless are you coming through the United States. You will not swim here. I do not mean to be facetious, but the Atlantic and Pacific Oceans are darn big. You will arrive here if you are smuggled here, if you fly here or if you land at one of the ports more or less legitimately. That suggests that you have some access to means or that you are being exploited.
I wanted to make sure that we could distinguish between when someone is being exploited, when someone has access to means, when someone is a bona fide refugee and when someone is an applicant for permanent residency but decided to take a different route. I could not do that, unless I had the resources, the money and the philosophy behind it.
I thought we could develop the philosophy. We worked together with the Europeans and Americans — my department did on my behalf — and, for my part, I managed to get $750 million specifically for this from cabinet to ensure that we would be able to address these questions and to be able to be compliant with the UN.
I had the senior official from the United Nations High Commissioner for Refugees, the UNHCR, come see me. He was delighted with the way that Canada was handling the process. I could not take full credit for that and I would be a vainglorious fool if I even attempted to do so. However, obviously it was a system that he was seeing from beyond our borders. He said, "These Canadians have got something right and we need to support them.''
Senator Jaffer: Far be it for me not to talk about refugees abroad being given help. I am a recipient that of largesse, so I do not want that to be forgotten. However, when people arrive at our doorstep, we look at the rights of every individual. That is why we are the great country that we are.
You talked about four processes. I do not agree that those are appeal processes. For example, Peter Showler, who was knowledgeable on these issues, said that the PRRA assessment was intended to figure out at the end if someone had a new risk of going out. That was not a review of the decision. The H&C process is not a review of the decision, it is to decide whether that person, as you have said, is able to settle in our country. The Federal Court must first give you leave to be heard. It is not really a review. It was the Refugee Appeal Division that was really a review of the decision. When you talk about four processes, there is not really a review of the process. A different process is set up but there is not a review of the original decision.
Mr. Volpe: I guess I reserve the right to differ. Mr. Showler, whom you have identified, is like many other people with an opinion. As much as that opinion would be valid, you would say that he was in that kind of position so he would know. Yes, he might. He was charged with a particular task and he was giving you an impression about how he viewed that task ought to be filled. I was charged with a particular task and I moved to ensure that I fulfilled it in the way that I perceived to be in the best interests of the country.
There are those who view my period a little differently from the way that I viewed my administration. That is okay. When we are talking about people's lives, I did not want anyone to try to pull the wool over my eyes about this being an appropriate appeal process or not. When you got to the point where you were making an H&C application on risk, you were in a position to be able to tell someone, "everyone before you was wrong,'' for example, to say, "I will face death and persecution if I go back to where I came.'' Unless a person is made out of granite, I do not understand why you would not be able to make your case. With my predecessors, I found that when I advanced the position of some applicants on the basis of material that had not been considered, my colleagues almost invariably instituted a review that ended in the affirmative, but I had to be even more convincing than everyone else beforehand.
I guess this is a rights-based society and country. It was not always that way, but, happily, it is. It is still very strict about you knowing how to promote and defend your rights. There is a cadre, an army of people, who are expert in this. They are available to anyone who thinks that his or her rights are not being fully developed. With all due respect to anyone here who is a lawyer, that is they are there for that.
Senator Jaffer: Obviously, we will agree to disagree. Because we are colleagues, I will send you what we heard yesterday.
Senator Nolin: Written argument?
Senator Jaffer: No; he is no longer a decision-maker. I will send you what we heard yesterday, namely, that mistakes can happen. No one, not even in their wildest imagination, can say that our review process is air tight.
Earlier, you spoke about something that intrigued me, namely, stakeholders. I was not sitting here when this legislation was being discussed. I remember very clearly that there was a two-pronged approach. Instead of having two members, you would have one member. Just in case the member made a mistake, there would be a Refugee Appeal Division. I believe that we have been short changed. We now have the one member, but we do not have the RAD process. You said that an agreement was made with the stakeholders. I believe that we have let people down because we have only taken one approach. We have the one member, but we do not have the RAD process in place.
Mr. Volpe: You are probably right; we will have to make an agreement. I can only give you my perceptions and they are historical.
I am always wary about someone who makes a point for everything on the basis of the worst case scenario involving a small handful of people. I think of that as a guide to ensure that you do not fall into those problems. Others before me — and I was not there for any of the negotiation, either — will recall that there was a time when we did not have an IRB process. Others will recall when there were three people on the panel before they were reduced to two and before they were reduced to one. Others will recall as well that there were varying degrees of competence and preparation for every one of those panellists.
I will give you an indication that, from my perspective, I wanted to have at least a minimum grade of qualifications, a standard that could withstand scrutiny by people who promote and advance rights amongst those who previously did not have any. We invested in ensuring that that first step be addressed, because it is useless to have 30 steps if the people who are making the decisions along the way: first, do not have a policy framework in which to deal; second, do not have a legal or charter framework in which to address the issues; and, third, are insensitive to the objectives of the hearing itself.
I needed to have people who wanted that. That does not mean that other ministers before me did not want that. I just felt that I wanted to move away from the accusations that were being levelled at us for patronage and insensitivity. I am a bit like a poet, I suppose; I know what I am writing about. When you write that poem, you and God know what the intent is but 30 minutes later, God is the only one left and everyone else is a critic.
I guess we do have to disagree. I think that the rights of the individual are eminently promoted by this system. Whether the government has the resources and the political will to invest in them the way that I thought my department did when I was there — and, again, I hasten to add that it was not because I provided the leadership but because we developed a context in which everyone would fulfil their own role — is for someone else to do.
The Chair: Senator Goldstein, you have been patient.
Senator Goldstein: Thank you. Patience is not my strong suit, as you probably know.
Mr. Volpe: But it is a virtue, nonetheless.
Senator Goldstein: It is a virtue, one I do not possess a great deal of.
Mr. Volpe: You must have been made a senator for a reason.
Senator Goldstein: Thank you for coming here this afternoon and for sharing with us your experience and the philosophy that guided you during the course of your stewardship of the department.
I do not think anyone here, or elsewhere, is criticizing you for that stewardship. You did what you thought you had to do, what you ought to do as well. You were inspired not only by what you must do but also by your concept of your moral duty. We all admire that.
No one here thus far, and no one as far as I know generally, is attacking you for what you did. None of that is at issue today. What is at issue today is that there is a statute, and that statute has many provisions. Let us talk about only three, which, for a variety of reasons you and your colleagues in this portfolio — and you and your colleagues in this portfolio have some reasons which are congruent and some reasons which are special — did not cause to be promulgated. Are you aware, because you have been in government much longer than I have, of any other law that has passed by the Parliament of Canada containing provisions some of which had been promulgated but some of which have not?
Mr. Volpe: Thank you for your preamble. I did not think I was coming here to defend either my stewardship or my morality. I am glad that you took note that that is not why I am here. I am not here even to defend any of the actions that I took or did not take. I was guided by one moral imperative, and that was what is in the national interest — not what I ought to do and not what I had to do, but what is in the national interest. I dare say all ministers probably do the same.
With respect to the answer to your very specific question, yes. Bill C-11 came forward and went to the Senate. The Senate asked for an amendment, and it came back. Bill C-11 has to do with promulgating various sections, including section 27, I believe, and that will be done once the government has concluded a series of consultations with the provinces and other jurisdictions that have to do with the airline industry. That bill has been passed and I guess proclaimed. That is the most recent one. I know this because I asked in committee today to have the minister come forward and explain to us why a year later we still have not had an indication of the status of those consultations. It is not an uncommon thing.
Senator Goldstein: With great respect, it is uncommon. What you have just indicated to us concerning Bill C-11 was predicated upon consultations because of a variety of potential constitutional issues that could arise. In this particular instance, there was no predication of this piece of legislation on any external factor. Perhaps I should make my question more precise. Again, I am not criticizing you or your predecessors. I am just asking the question. Are you aware of any statute which was not predicated on specific consultations or which did not have constitutional overtones, part of which was not promulgated?
Mr. Volpe: Senator, you have been kind enough to point out that I have great experience in government, and part of that experience you heard me indicate to you earlier about the parliamentary process and the constitutional duty of ministers and the executive. I am aware that legislation allows for that executive discretion to be applied in the national interest. Let me return the favour by telling you that I am not as steeped in statutory law as you might be, so you have me at a little bit of a disadvantage.
Senator Goldstein: You spoke of this legislation in your mind or in the minds of your predecessors as being subject to a test period. I am not sure that I understand what you meant by that. Could you take a moment and explain that to me again?
Mr. Volpe: I appreciate that. Perhaps my use of the word "test'' is an inappropriate one. What I wanted to indicate, and I think I elaborated to illustrate this, is that you needed to have a period over which you could see the impact of the legislation. If the legislation was designed to increase the numbers of people who would be landed as refugees, and if that was the ultimate test of the success of the legislation, then you could not do it the day after you had promulgated the legislation. You obviously have to have a period of assessment. If the test of the success of the legislation or the appropriateness of the legislation would be whether people had suffered unfairly under this system, i.e., if there were more and more demands on stage 2 and stage 3 and stage 4, then you would have to have a period of assessment as to what characteristics of the decisions lead someone to go to the next phase and then the third and the fourth, and then presumably a fifth one.
I felt that one could not possibly have an accurate assessment of the impact of the legislation unless a particular period of time had gone through. When I became minister, the House of Commons immigration committee had undertaken to review whatever information it had at its disposal and was to present a report, which I think was tabled in the House sometime in September or October, the exact date escapes me, of 2005, when we were right in the middle of a discussion of whether we were going to go to an election. I must confess that I was not able to address their findings with the same kind of precision with which I am trying to answer your question.
Senator Goldstein: Thank you. Is it correct or am I mistaken that none of these assessment concerns were mentioned or raised during the debate which culminated in the passage of the bill?
Mr. Volpe: I cannot comment on that because I was not part of the debate that led to the passage of the bill. I do know that people constantly made the case, and you heard me say to Senator Jaffer and I think you repeated the word "stakeholders.'' The arguments that were made, and the briefings I received were that the stakeholders felt that they were part and parcel of the revised legislation in 2001, and they wanted compliance with what they understood then to be the negotiations. I was not part of those negotiations.
What was of greater interest to me, as I have said, was the impact of the legislation, which I took to be the general interest of all Canadians and parliamentarians. You want to be seen as a nation that is compliant with your international obligations, number one; as a nation that is compliant with your human rights standards, number two; and as a nation that is responsible in its evolution and development of an immigration plan that includes refugees, number three. I thought that those were the first orders of priority, and that is how I operated.
Senator Goldstein: You spoke to us about being content. You did not use that term, but that is what you meant, I think.
Mr. Volpe: It would depend on what you say, whether I agree with you or not.
Senator Goldstein: If I stopped there, that would be an interesting question, but I do not intend to stop there. Being satisfied is perhaps a better term. You were satisfied that Canada was in compliance with the international standards required of it for purposes of refugee assessment and admission and refusal of admission, and there are standards. Canada participated me in that, correctly so, and you said that Canada was, in fact, in compliance.
A year after this legislation was passed, in May of 2002, the United Nations High Commissioner for Refugees wrote to Minister Coderre and said, amongst other things, the following. We have to understand that the United Nations High Commissioner for Refugees knew about pre-removal assessment, knew about the Federal Court appeal, which is not an appeal, as we both know, knew about humanitarian considerations, and knew about the entire gamut of the refugee procedure which Canada has put in place. Nevertheless, the following was said by the United Nations High Commissioner for Refugees, on behalf of the United Nations: "The United Nations High Commissioner for Refugees considers an appeal procedure to be a fundamental, necessary part of any refugee status determination period. It allows errors to be corrected, and it can also help to ensure consistency in decision-making.'' The Commissioner went on to say, "In the past, a measure of safeguard was provided by the fact that determinations could be made by a two member panel, but with the implementation of the IRPA on June 28, this safeguard will be lost.''
We see the United Nations telling us — and they told us again yesterday in testimony here — that we are not in compliance with international standards. Everyone knows that there are four mechanisms available. They are saying we should have a fifth mechanism.
You are saying that perhaps in terms of the availabilities of your budget and your personnel — and we understand that you had virtually no control over that —this was not a valid, cost-effective choice you could make because you were relying on other arms and elements of the immigration policy of Canada to correct any problems and to deal with a variety of resettlement and other matters that had to be dealt with. Nevertheless, that United Nations condemnation of Canada stands baldly out. It started in 2002 and continued on June 2, 2008. Does that give you pause?
Mr. Volpe: Sure. Give me an opportunity to go back to my notes. I can recall that in 2005, the individual who filled that position came to Parliament Hill, was introduced by the Speaker of the House and came to me and said thank you for doing what you are doing. I did not ask him to put that in writing. However, here is something from the UNHCR Canada operations plan 2004 and I think we are talking about the same individual, "Canadian policy and practice are often seen as setting the example for other countries.''
I do not know whether that means that you are no longer happy with what he said in 2002. Certainly in 2004 and 2005 when he came to see me about where we were going, and asked me to continue ensuring that Canada fulfilled that definition, it would suggest to me that the United Nations was at least content — to use a word that you elaborated on earlier — to see that Canada, the landmark society for human rights and refugees, was continuing in a path that he and his organization felt led the way for others to follow.
Is that the case today in 2008? I do not know; I have not been in government since the beginning of 2006. I do not want to say that all good decisions stopped in 2006, but in a weak partisan moment, I might be tempted to say something like that. However, that would take away from this presentation.
The Chair: Thank you for resisting and for giving us your perspective when you were minister and your reflections today. They have been helpful and they have completed our picture as we look at various aspects of Bill C-280.
As we probably have a television audience, I would remind people of the good work that the Senate does. One of those is the work of Senator Banks, who has proposed a bill several times. Unfortunately, it never got to full enactment, but it was to take off the books of the government and Parliament acts that have been passed but not implemented.
Senator Nolin and I, and I believe Senator Jaffer, had been in the Standing Senate Committee on Legal and Constitutional Affairs, where we were given numerous examples by Senator Banks and officials of partial enactment of bills. This is an ongoing study and dilemma that I hope the Standing Senate Committee on Legal and Constitutional Affairs will be seized with in the future. That is a plug to stay tuned to see the good work of the Senate in that regard.
Mr. Volpe, thank you for coming today.
Mr. Volpe: My compliments, Madam Chair. Thank you for giving me the opportunity to speak to you. If it has helped to give you a more rounded picture, that is great. If it has not, I have enjoyed my time with you nonetheless and I thank you for your reception.
The Chair: Our next witness, appearing before us as an individual, is Mr. William Bauer, former member of the Immigration and Refugee Board. With your expertise and knowledge, and probably having had the opportunity to watch parliamentarians, I trust you know that we would appreciate a very short statement to start and then we would like to turn to questions and answers. Welcome, Mr. Bauer.
William Bauer, former member of the Immigration and Refugee Board, as an individual: Thank you very much, Madam Chair.
I should perhaps say I was a member of the board for four years. I left it voluntarily. I then had a number of articles published which I think made me rather notorious among some stakeholders, as they are called, though not among the stakeholders I was thinking of: the Canadian public. The Canadian public is never mentioned as a stakeholder and I would like to make that point.
Also, just to make it perfectly clear, I went for the board after retiring from the foreign service. My first posting was Warsaw in 1953. I learned about persecution during two years in Warsaw. I learned about immigration, also. We worked for two years trying to get to Canada a lady who was the mother of a former member of Anders Army who was a Canadian citizen.
Two years we worked on it. She finally became the first Pole in my two years — and in fact since 1948 — to be allowed to leave Poland for Canada, despite the UN right to leave your country freely. She was delighted. She came to visit us and thanked us. Her son was delighted. However, as a 60-year-old woman, her job was cutting trees down in a public park in Warsaw. The day before her departure, she died of a heart attack while cutting branches off a tree. I learned about immigration and human rights there.
My next posting was Hanoi, in North Vietnam, where thousands of people were being murdered by the regime under the guise of land reform. I learned a lot about public policies and human rights there. I have been involved in many other things, too.
Therefore, I had a fairly fine appreciation when I arrived at the board about how countries persecute subtly and not so subtly, how people suffer and how terrible the things are that human beings can do to other human beings and that governments can do to their own people. I am pro-refugee. I am also pro-immigration, although we are not talking about that today.
Having said that, I did make a few notes this morning hoping I could put a bit of the whole problem in context. I do not want to repeat everything that has been said previously. Senator Goldstein, I do not know why I have lost my voice. It happened on the flight.
The Chair: Also, it is dry in this room. Some of us suffer, as well.
Senator Goldstein: What is it nowadays causing you to lose both voice and pocketbook?
Mr. Bauer: Perhaps my pocketbook will not be affected by my flight. Your question was about whether there has ever been a piece of legislation passed in which part of that legislation was not promulgated or acted upon.
I cannot talk in broad constitutional or legislative terms. However, there was one related to exactly what we are talking about today. That was the predecessor of the present Immigration and Refugee Protection Act which was passed in 1989. It provided for creating a list of safe third countries to which people arriving on our shores and claiming refugee status could be sent back in order to keep the system from being overcome completely. That was never promulgated. That is one example. It is on the other end of the limb, so to speak, but the case certainly exists.
Finally, I might say, they tried to negotiate a safe return agreement with the United States. They started in 1995, but the Americans were not ready for it. When they finally were, it was negotiated. However, it has been challenged by the Canadian Council for Refugees. They have won their case in Federal Court on the grounds that the United States is not a safe place nor democratic enough for refugee claimants to be returned to.
I think the government is challenging it in the Supreme Court. I hope they win, because it shows how a narrow focus and a set of objectives by lobbies can become overwhelming.
I belong to no organization. I am only writing a book trying to explain why so little is understood about this subject in Canada; why it is a taboo subject for rational, independent debate without people being accused of things. I feel that some organizations become so obsessed with an objective that they use facts selectively. They attack people who disagree with them. In your case, I collected all this information on Bill C-280 from the Canadian Council for Refugees website. I notice they are urged to write letters — they are even provided with the letters to send to you — they are urged to make appointments to talk to you and they are told, too, "Do not get too complicated for the senators.'' In other words, when you call on them, keep it brief and condensed because you do not want it to be too complicated.
I may become a little complicated. I am sorry. I am just prefacing what I say to point out that many things have been said during these hearings. I have the report from the previous two hearings. I was here listening to yesterday's hearing. A lot of it is false, a great deal is exaggerated and much of it selectively leaves out certain things.
I do not have a dog in this fight except as a Canadian citizen and as a supporter of refugees. Therefore, I will not argue with everybody. However, I do want to make a few points about how the system works and why I consider this particular bill to be ill-advised despite excellent intentions.
I have absolutely no question about the intentions of you, senator, and your co-sponsor in the other place. You are trying to save people from a terrible fate and I think that is commendable. However, I am convinced, on the basis of my knowledge and 10 years of research since I left the board, that this particular bill is misguided, will not accomplish its objective and may, indeed, make it more difficult to accomplish.
Now, I was thinking of running through the background of the situation. I was not thinking of doing so in the sense of what you have all heard from the UNHCR's representative yesterday.
The Chair: I would like to move to the questions because I think you have whetted the appetite of senators to ask questions. Can you give the essential points on the bill? We have to shut down on a particular moment for the next witness. I do not have much discretion on that. I want to move to the dialogue.
Mr. Bauer: Fine. In summary, the provision for a Refugee Appeal Division does not add anything to the process at all. It has been said there is no appeal process in place; that the Federal Court simply looks at procedure and so on. This is not true.
I read the Federal Court every week. They put out about 24 cases. They are full text. They deal with fact and they deal with law. The case is thrown out if any member of the IRB ignores facts, uses little things to question credibility, ignores the law. There is no question about it. The Federal Court, whether it is leave to appeal or the full three judges, do a tremendously laborious job of dealing with appeals and they are very effective.
It is true that they do not give a hearing to everyone because they do the same thing that you are suggesting the RAD should do: they read it, they look at the law, they look at the facts and they look at the way the claimant was treated. If it does not deserve review, then they do not hear it. Even though it does not go to the Federal Court, it is looked at by the Federal Court. To me, that is doing the same thing that the RAD would do.
I do not want to get into further detail, but at the end, I would like to suggest a few things that might make the whole system work better because, I will admit frankly, it is a mess from the beginning to the end. It is not a mess because of governments or because of the very dedicated people on the IRB — those who are competent. It is not a mess because the law is not a good law. It is a mess because a lot of people have the key to the castle and know exactly how to play the system, and it is played very, very well. I do not just mean the international gangs that traffic in people and provide them with arguments. Everyone in this business, which is now an industry, knows the law as well as any of us. There are claimants who are not fleeing persecution. They are trying to avoid the immigration process. I have seen stories that you would not believe and stories that you would believe. For the ones you would believe, I think it is impossible to turn them away, although you know fairly well that they are not true. However, there is no way that it would get past the court.
There is one other point I want to make. The idea that a panel on the IRB can make a judgment and make a mistake that goes against a legitimate refugee must be looked at very carefully. There are many mistakes made on IRB panels, but most of the mistakes made are in a positive direction and not in a negative direction. There is a reason for that. Any negative decision requires an elaborate, carefully thought-out and analyzed process that is totally consistent with the precedent. They must set out reasons which must stand up in an appeal. This requires work. It takes half a day to write a good set of reasons if you have all the facts and precedents at your fingertips.
A member who is weak in either language, analytical ability, writing ability or anything else will duck writing reasons like the plague. It is hard enough for those of us who are fairly experienced, but a person who is not fully equipped to write legal reasons and who is not equipped to know and study the vast precedents from the Federal and Supreme Courts is lost. His easiest way out is to say yes, it is positive, and then he does not have to write anything. No one will appeal it except, occasionally, the minister, who has a right to appeal if it is a matter of public security or gross violation of the law. Beyond that, the mistakes made in the IRB, in my experience, are essentially in a positive direction and not in a negative direction. The few mistakes made in the negative direction of which I am aware have been picked up by the Federal Court and have been thrown back with rather nasty comments about the ability of the member or the members, as the case may be.
Senator Goldstein: Thank you for coming here this afternoon, Mr. Bauer, and for sharing your experiences with us. I understand that you are not a lawyer by training.
Mr. Bauer: No. Let me put it this way: I know you consider that to be very important, senator.
Senator Goldstein: I did not say that; I am just asking the question.
Mr. Bauer: I heard you ask the question before and I read it in the transcripts. I want to say that any competent member of the IRB is so steeped in the jurisprudence of refugee law that they can run circles around half the lawyers that appear before them. I want that on the record.
Senator Goldstein: I am sure that is true.
The Chair: Perhaps you will have half the senators agree with you and the other half not. We will leave that point. Senator Goldstein, could you ask your next question?
Senator Goldstein: In the course of your presentation, and again just a few moments ago, you distinguished between members and then you added in the first instance "in any event, those who are competent.'' Just now, you talked about "any competent member.'' That terminology implies there are incompetent members.
Mr. Bauer: That is true in any organization, senator.
Senator Goldstein: No doubt. If incompetent members are called upon to apply important principles that deal with the liberty and, in some cases, the lives of some applicants, as you eloquently put to us, would you not say that the existence of an appeal mechanism would be essential to correct those decisions — and, there may be few or there may be many; we cannot judge that — that are the result of incompetence?
Mr. Bauer: As I explained, senator, there is an appeal process called the Federal Court, or the Supreme Court if it goes that far. To the best of my knowledge, there are few, if any, negative or incompetent decisions that are not thrown back by the Federal Court.
Senator Goldstein: Do you agree that there are some?
Mr. Bauer: I do not know. I do not think any of us know. I do apologize. Normally, I am a little more articulate.
Any negative decisions that are not based on precedent, the facts and the law will be challenged by counsel and will be given the right of appeal by the Federal Court. The Federal Court has so much experience now that it gives very short shrift to that type of negative decision. Positive decisions never go anywhere, because who will appeal them? The claimant will not; he is home free. The minister seldom can. The average panel member, as I explained, who has trouble understanding the law — and it is pretty complex, as you know, who has trouble expressing his views, who has trouble expressing the connection between the testimony and the law, who has trouble analyzing basic situations and who has trouble understanding what conditions can be like in certain countries, despite the vast documentation members are provided with and the submissions of counsel, will almost always give a positive decision. It will not cause any damage to any one except to the integrity and the consistency of the system.
Senator Goldstein: Mr. Bauer, you have now referred to the mechanism of recourse to the Federal Court twice as being an appeal mechanism. We will agree, will we not, that it is not an appeal mechanism but it is a review mechanism?
Mr. Bauer: No; I would not agree with that. I have read hundreds of Federal Court decisions. They all deal with substance and whether the member took account of the facts. They have the entire transcript. They have the transcript of the entire hearing. They have all the documentation, for example, the personal information form from the claimant and everything that the RAD would have, and they have authority under the Federal Court Act to intervene on a whole range of things. It is not just a review thing. They can actually determine whether or not the member has taken account of facts or taken too much account of small facts that do not matter to impugn the credibility of the claimant. They have a huge range of authority which they have expanded over the last 10 years to the point where they can almost write these things in their sleep. They know exactly what they are doing and they cover every aspect of the hearing.
Senator Goldstein: Are you aware that fewer that 2 per cent of the refusals are given leave to review by the Federal Court?
Mr. Bauer: The percentage fluctuates a great deal from year to year. I understood that 15 per cent are appealed and approximately 3 per cent move to a full hearing. This does not mean that the Federal Court is not involved because, as I have explained, it examines the entire package, including the transcript of the hearing. They have just as much to work on as the RAD would have but they have much more experience, I would say, and perhaps more knowledge of their own precedents than any outside board would have.
Senator Goldstein: Mr. Bauer, you are telling us that, from your perspective, the review mechanism is the same as an appeal mechanism?
Mr. Bauer: We hear about review on the merits. This is a favourite expression of the Canadian Council for Refugees. Having read Federal Court cases for 15 years, I know that they deal with every aspect of an appeal. Have you read many such cases?
Senator Goldstein: Yes, I have.
Mr. Bauer: I read them every week. I cannot think of any aspect of a hearing that they do not cover, in particular the credibility issue, which is the heart of these hearings, because it is up to the refugee claimant to establish his claim. This is unlike criminal law or bankruptcy law or other law. The onus is on the claimant to establish his claim. He also has the great advantage, unless there is evidence to the contrary, that his claim has to be accepted as true.
Senator Goldstein: If your conclusion is that the review mechanism is the same as an appeal mechanism, I should not continue questions.
Mr. Bauer: If I may say, senator, the important point in this whole business is the result of the process and whether it is fair, just and accurate, not the type of process you have. I would add that if the RAD were implemented and the RAD said, yes, the panel made the right decision, then I would predict quickly that some of the people who are pressing so hard for the RAD would say that we need another level of appeal because it just reviewed and did not really have an appeal process. Therefore, they would say that we need another level because they keep rejecting the cases referred to them.
I am sorry to be argumentative about this but a great deal of this makes no sense to me in terms of how the process works and what goes into it.
Senator Goldstein: Thank you, sir.
Mr. Bauer: You are welcome.
The Chair: Honourable senators, the bells are ringing. I understand it is for the purpose of the adjournment of today's sitting of the Senate. I am trying to obtain clarification as to whether committees may continue.
Senator Goldstein: If I may, I was present when we were told that committees were to continue sitting. That having been said, I am worried about quorum, which is an imperative, because the bill about to be before us is essential.
The Chair: I understand that the bill is not before the house and that is why there is an adjournment. Therefore, we would have been called back if the whips needed us in respect of quorum. I am in the process of confirming. We will continue and, in a few minutes, I will interrupt, if I may.
Senator Di Nino: Mr. Bauer, you made a comment a moment ago on an issue that I raised yesterday with some of the witnesses before the committee. In effect, are you saying that short of every single case being adjudicated in favour of the refugee, there will always be some body of opinion that will perceive a need to have an additional step to ensure that we do not miss anyone? As Mr. Volpe said a moment ago, why not have a sixth or seventh step?
Mr. Bauer: I am not sure I would phrase it exactly like that. We have to be careful that we do not assume the existing process — specifically and narrowly the hearing process and the recourse — is broken completely. Many aspects of the system need many changes but adding another paper review would accomplish nothing that is not accomplished by the Federal Court.
For many people, a decision that is not in favour of their client or that does not agree with what they think, is the result of a faulty process. However, that is not always the case. Often, it is simply that there was no valid case to provide and the decision was right, although people will disagree.
We have cases in Canada, despite the appeal system, whereby people spend many years in jail because of bad decisions. Additional appeals and reviews will not change anything if the quality of the decision-maker and the quality of the evidence are flawed. That is the message in that case.
Senator Di Nino: Obviously, you have had extensive experience in this issue and your knowledge is likely as broad as we have heard in our deliberations to date. I was struck by your obvious sincere interest in helping and protecting legitimate refugees. Does the current legislation, without the changes proposed by Bill C-280, accomplish that. Does our system help and protect legitimate refugees?
Mr. Bauer: We have such a system, in principle. However, some aspects of the legislation are flawed. The one- member panel was a terrible mistake and I am convinced that it was introduced under the illusion that it would enable the IRB to reduce the backlogs by enabling them to have hearings more quickly. The single-member panel does not work that way and damages the entire process.
I know that Mr. Peter Showler told the committee that he was involved intimately in the drafting of this proposed legislation. He looked at it from the point of view of what we, who are members of the board, called the bean counters. Every month we received the statistics and were told that we had to do more. We were told to expedite certain categories of people, such as Tamils between the ages of 14 and 40 years, which was the exact profile of the Tamil Tiger recruits. On and on it went. Mr. Showler was very interested in facilitating a speedier process but he did not realize what would happen when he suggested and defended this. Nor when he eliminated the need for the refugee protection officer in the hearing room, which was one of the biggest mistakes they made. This group of civil servants, who are not appointees, are lawyers who provide a reservoir of background knowledge and information that cannot be replaced by members who are rotated regularly, I am afraid.
They now have a system whereby a single member can sit in the room without the expert advice or the examination facility of the refugee protection officer. There was a British Privy Council decision and you will remember this, Senator Goldstein. It said that it is very dangerous for the judge to descend into the arena. Yet this is what this legislation forced on panel members.
They do most of the questioning, and unfortunately again, the weakest members are the ones that do not want to deal with refugee protection officers in the room. They do not want them to do the questioning. They do not want them, in some instances, to witness their suggesting that the client go out and have coffee with them after the hearing. That is another case we had recently.
Senator Di Nino: Obviously, Mr. Bauer, the two issues you speak of do not deal with Bill C-280. They deal with other issues and I think you are saying one should look at them some time in the future.
Mr. Bauer: Senator, it does. Every argument I have heard in favour of RAD is based on the fact that it was a deal made after the one-member panel was enacted. Therefore, RAD was produced in order to counterbalance the shortcomings of that reduction of the panel members from two to one. At the same time, the idea was that once both provisions were in place, everything would be great. Things would move quickly.
I have read the House of Commons committee testimony by ministers, by Mr. Showler who is the former chair of the IRB, and by all sorts of people that said this is a perfect system, it will speed things through and it will make everything work much better. Now I hear them, five ministers later, saying no, it will not work.
There is a contradiction here. I think I know what the contradiction is. This is only speculation, I do not have inside information. I think it became obvious after the act was put in place that the problem with the RAD was not only money, manpower and the unnecessary additional staff. It was also the fact that it provided for the minister to intervene and for the minister to go to RAD.
It was explained very quickly at one time. The reason that was in the legislation was to enable the minister to force RAD to establish precedents that would be enforceable at the IRB hearing level. In other words, it was to produce what they call consistency in the decision-making process.
That is very close to fettering the members of the panels. It was a roundabout way of doing this. The minister also would have the ability to call in experts from the countries of origin of refugees.
They did that with Hungary when we were receiving many Roma being encouraged to come to Canada. They had stories that did not make much sense. They brought in experts from Hungary, not government people, but people who knew the situation , and then produced a model set of reasons based on facts. This created an enormous storm and they realized that trying to do this through the RAD would not work in future. It was politically unacceptable.
The Chair: Mr. Bauer and honourable senators, it is 5:15 p.m. and technically the rules say we do not have to go back, but we should suspend. It is an adjournment. We will suspend for five minutes and then reconvene.
The committee suspended.
The committee resumed.
The Chair: Honourable senators, we are reconvened to continue our examination of Bill C-280. I apologize, Mr. Bauer, but we erred on the side of caution to ensure we comply with all the rules here. The Senate is now adjourned, so we will continue.
Senator Di Nino: I will yield, as I am cognizant of the time. Thank you for being so gracious with me.
Senator Munson: I am intrigued by your argument that the Federal Court is the place to go, so therefore we do not need a Refugee Appeal Division. Is that a simple process? Also, once a person has exhausted his or her requests to stay in this country, there must be a lot of anxiety and so on. Is it a simple process to move it there to have it reviewed or looked at? Can you tell us a recent case that has made either headlines or not headlines of a successful appeal before the Federal Court?
Mr. Bauer: There may be broad policy cases that are taken, like this case of the attack on the safe third agreement with the United States. That makes headlines, but individual cases seldom do, unless they go to the CBC. Then, if it is an interesting case, they give a half hour documentary on The Current or something. There are so many of them. Each week on the Federal Court website, I suppose they have about 30 cases, of which I would say usually about 18 are refugee cases. They cover a whole range of aspects of the law and so on.
I do remember one very recently where it was only half a page, and they said that the member had shown a total lack of logic and comprehension of the facts, and they threw the case out. They do not waste words unless it is very elaborate.
There is a case of Mr. Matas, who appeared before you. He represents in Vancouver a Chinese businessman who is sought by the Chinese government for embezzlement of $4 billion. It was interesting to me to hear Mr. Matas talk about how delay is eliminated and there is no access. That case has been going on for seven years. In the last reasons the IRB members wrote, they listed about 20 hearings they have had in this case and a 200-page set of reasons explaining their decision, so it is done very thoroughly. This is not a cowboy outfit. It simply has a couple of cowboys here and there in it.
Senator Munson: You were here last night and heard those impassioned pleas from the Unitarian Church. The last segment was quite moving. Many people feel we need to have this RAD put into place through this bill. We heard the Canadian Council for Refugees and the Canadian Bar Association, Amnesty International and all these folks. In your preamble, you talked about some of this being ill-advised, despite excellent intentions and so on. What do you say to these organizations that, in their heart, feel this is an important piece of legislation?
Mr. Bauer: I cannot say much to them. They have their meetings regularly. The Canadian Council for Refugees claims to have 180 member organizations. I have asked for a list and never got it, but I do know that when they list the people who are supporting the petitions on their website, many of them are very small organizations, most of them publicly supported. Most of them are refugee or immigration settlement groups. It is very focused. When they have meetings every six months, they do not invite people like me to have a constructive discussion. They only talk to each other.
I have not had a chance to talk to Janet Dench. I met her once when our paths crossed in a meeting, but I read everything she says. This is the organization that at the Durban Conference on Discrimination submitted a big brief — I even have it here, I keep it as a souvenir — accusing Canada of having systemic racism and discrimination and our immigration system of being systemically racist. That is the Canadian Council for Refugees. I think it is a scandal that any Canadian organization would make remarks like that in an international forum which, as we all know, was designed to clobber Israel, primarily, and where real human rights and real discrimination among the Libyas and the Iraqs and all the rest of them was never touched.
You can see why I have a certain question about the briefs. I look at the thick pile of letters, briefs and summaries, most of which I could pick holes through. If you had another hour, I could pick it apart piece by piece. This is a lobby.
As to the refugee lawyers association, there were 700 of them when I was on the board. I asked Max Berger yesterday, who is an old adversary and we got along well, how many are there now. He said, "Too many.'' Just at the time that the Toronto real estate market collapsed, people who used to settle mortgages went into this business, and they did not do a very good job.
Senator Lovelace Nicholas: Let us assume the review process was a success. Does the claimant then have dual citizenship?
Mr. Bauer: No. When the Federal Court decides a case, it sends it back for a hearing with a different panel, and usually the hearing has to take account of all the points that the court made. If the claim is then accepted, then there is a whole process that takes time and paperwork, but he or she is in the clear at that point. They become landed and then eventually get citizenship, yes.
Senator Lovelace Nicholas: Once all this happens, the person cannot go back to his country of origin?
Mr. Bauer: Yes, they do. Tamils who come here from Sri Lanka go back to Sri Lanka all the time. They complain that the Tiger organization in Canada sends information to the checkpoints that the Tamil Tigers run in Sri Lanka. If they have not contributed money to the Tamil Tigers, they cannot get through those check points. My question is, why people who came here, being persecuted by the Tamil Tigers, are going back to visit Jaffna?
These are the anomalies in the system that most Canadians do not hear about, but it is very important. If the system falls into disrepute, then the sympathy of the Canadian public for refugees, which is immense, will gradually erode. It flares up from time to time when there are dramatic incidents, like ships turning up off the coast of British Columbia and so on, but then it goes away because most people do not have the time and the money that the lawyers' associations and various pressure groups have, and most politicians do not want to stir these waters any more than they have to because they depend on many of these groups for votes.
You do get a terribly confused situation but yes, once they are through, they become Canadian citizens.
Senator Jaffer: Mr. Bauer, I understand that you are of the opinion that having one member, especially if there are no examiners, is not a good idea?
Mr. Bauer: Absolutely, because in the old system, if the decision was positive, one member was positive, that was the final decision, unless of course the person had false documents and not a persuasive answer.
Senator Jaffer: I understand from what you are saying that one-member panels are a bad idea because mistakes happen?
Mr. Bauer: No, I am saying that with so many weak members, they need to be bolstered by a strong one. I think Mr. Showler told you that earlier. The idea was that they would mentor them.
No, he told the House committee this when the act was being passed. It needs two members in order to provide the sort of shared information, shared judgment and compromise. That protects a claimant far more than anything else and that has to be put back in the bill.
Senator Jaffer: Now there are not two members? There is one member?
Mr. Bauer: One member, and even worse, in many cases the refugee protection officer who is the source of background and the source for questioning is left out of the hearing room altogether. The number in Toronto has been reduced by approximately half.
Senator Jaffer: So you would agree we need some kind of a review process?
Mr. Bauer: No, I do not agree with that at all. The review board does not solve this problem. The problem will be just as bad if these two points are not corrected in the legislation. If I had any plea for the committee, it would be to suggest to the other place that the act should be amended but in a different way. The two-member panel should be reinstated and that it should be required that refugee protection officers be present throughout hearings. I think that would do far more to ensure that no mistakes or injustices are committed than this system, which is just a straw horse. I was going to say straw man, but that is sexist.
The Chair: Mr. Bauer, I am sorry that we had to interrupt your testimony. You have been at these hearings before, so you know that the committee works with the chamber and sometimes it is not finely tuned. We do the best we can. Thank you for coming and sharing your perspectives and experiences prior to being on the board and subsequently in your analysis.
As our final witness in our review of Bill C-280 we have the Honourable Diane Finley, the Minister of Citizenship and Immigration Canada.
Madam Minister, I apologize that we are running late, but with the chamber sitting, we had to suspend. Thank you for that consideration. We hope we can still have the full hour. I understand you have Ms. Andrea Lyon, Assistant Deputy Minister, Strategic and Program Policy, and Ms. Micheline Aucoin, Director General of Refugees, and there is an opening statement. We await your words and then will turn to questions.
Hon. Diane Finley, Minister of Citizenship and Immigration Canada: Thank you Madam Chair and honourable senators for this invitation to speak with you today.
[Translation]
You have already met Andrea and Micheline, who are going to help me today. I will make a few comments, then we will be happy to answer your questions.
[English]
Canada is recognized as having one of the most fair and generous refugee resettlement programs in the world. In fact, our refugee system is internationally recognized and often held up as an example for other nations. While it is fair and generous, unfortunately that gives it an opportunity to be abused. Canadians get upset, and I believe rightfully so, when they see unscrupulous individuals abusing our generosity at the expense of real refugees who need and deserve our help and protection. Canadians rightfully expect our refugee system to help and protect legitimate refugees.
Unfortunately, experience has taught us that many refugee claimants are not legitimate refugees. The fact is that valuable resources are increasingly being diverted from those who need our help to those who ultimately are found not to be genuine refugees. Sadly, this situation appears to be getting worse.
Over the past few years, the number of refugee claimants in Canada has increased at a rate much higher than in most other countries and a majority of claimants are found not to be in need of protection. In 2006, refugee claims increased by 16 per cent, and last year they increased another 24 per cent to over 28,000. This year we are now expecting more than 40,000 claims. In the first few months of this year, applications were up over 50 per cent over the previous year.
[Translation]
To be honest, Canada's refugee system is about to collapse under its own weight.
[English]
Mexico has become our top source country for refugee claimants, filing over 7,000 claims in 2007, an increase of 246 per cent since 2002 and roughly one of every four we received last year; and yet the IRB is determining that 90 per cent of those claims are not justified.
[Translation]
These claims are clogging a system designed to help people who truly need it, which is wasting taxpayers' dollars.
Implementation of the Refugee Appeal Division, or RAD, as part of the current system would just exacerbate the situation.
[English]
Canadians want our refugee system to make way for those who truly need our help, because for every false claim being made there is a legitimate refugee desperately waiting longer for our help and protection. In practical terms, if implemented, the Refugee Appeal Division, would serve as a de facto appeal mechanism for every single failed refugee claimant, regardless of whether or not they are indeed legitimate. The result would be that those who truly need our protection will have to wait even longer before being granted asylum in our country.
[Translation]
Madam Chair, once the IRB has rendered a decision on a claim for refugee protection, the claimant has access to three recourse mechanisms under the current system: judicial review, pre-removal risk assessment and an application under humanitarian and compassionate considerations.
Most failed claimants already stay in Canada for years before leaving or being removed.
The RAD would add another step and five more months to an already lengthy, complex process.
[English]
Bill C-280 would not address the pressure related to rising refugee claims, and it would not address the current lengthy and complex system related to the various recourses available to failed claimants. It would duplicate existing processes without providing additional safeguards for claimants.
In fact, under the proposed legislation, the RAD would provide only a paper review of decisions made at the Refugee Protection Division of the IRB. As a paper review, it would not provide the opportunity for a new in-person hearing and that means no oral appeal. This review would be based on the same information and same evidence on record that was used by the IRB in assessing individual refugee cases.
[Translation]
Implementing the RAD would only duplicate existing processes under the more complete review conducted by the Federal Court.
The RAD would not enable failed refugee claimants to present new evidence or circumstances that might have changed since the announcement of the original decision regarding their claims.
[English]
The current Pre-Removal Risk Assessment, or PRRA, does that. The PRRA process provides claimants with a final opportunity before removal to present new evidence and to have it assessed. The PRRA also provides the opportunity for an in-person hearing. RAD would not do this because it is a paper review and that does not allow new evidence.
[Translation]
One of the advantages of the Canadian system is that we have invested in a very competent first-level decision- making process that is recognized internationally. In Canada, refugee claimants can turn to an independent quasi- judicial tribunal with expertise on refugee claims.
[English]
Rather than having a weak first decision that would need to be overturned frequently on appeal, we have a first-level refugee determination which, as I mentioned earlier, is considered by many as being one of the best in the world.
It is important to note that implementing the RAD would involve tens of millions of dollars for start-up and annual costs to the federal, provincial and territorial governments.
[Translation]
Additional resources should be allocated by the federal government and our provincial and territorial partners, since asylum seekers would continue to benefit from various services, including sickness benefits and social assistance.
[English]
Canadians would be right to question whether yet another layer of process and another layer of cost would make the system any better. In this case, I believe it would not. We need to ensure that we do not sacrifice the present level of protection in order to add a questionable appeal.
[Translation]
When the IRB grants a refugee claim, it takes two years from the time the refugee claim is submitted to obtain the status of permanent resident. However, according to the IRB, a little less than half the refugee claimants — barely 43 per cent — truly need protection from Canada.
[English]
For the 57 per cent that the IRB turns down, it takes a long time — a minimum of two to three years — before they can be removed from Canada. This is because most failed refugee claimants go through at least four decisions before removal can take place. Adding a fifth recourse will only serve to delay justice for legitimate and illegitimate refugee claimants.
[Translation]
As the Auditor General has recently indicated, the longer failed refugee claimants stay in Canada, the more likely they will stay here permanently. The current system already has various recourse mechanisms, including appeals before the Federal Court.
[English]
Madam Chair, I wish to assure you and members of this committee that the current refugee system is already in full compliance with international and domestic refugee law. At this time, the implementation of the Refugee Appeal Division will not improve the refugee determination system. In fact, I submit that it will make it worse.
Simply put, the proposed legislation, if adopted, will weaken if not cripple our current system. These problems will be significantly compounded if there are no clear transitional provisions. The lack of a clear transition rule in Bill C- 280, specifying who has a right of appeal and which cases in process would benefit, could create a situation where tens of thousands of failed refugee claimants could file an appeal to the RAD, creating a huge inventory on day 1 of RAD operations.
The reality is that approximately 40,000 claimants have been rejected since the Immigration and Refugee Protection Act, IRPA, was implemented in 2002, and this number increases every month. This figure does not include claimants rejected before 2002 who have not been removed and have not been granted permanent residence. These claimants may also seek to appeal to the RAD if there is no clear transition rule.
Before I close, I would like to quote a former Liberal Minister of Citizenship and Immigration who, like I, had to address the issue of RAD implementation. As Mr. Joe Volpe said:
. . . the appeals processes are there for everybody and . . . they work quite well. We are not interested in adding another layer of appeals . . . .
He said that in March 2005. He also said:
It still takes too long for decisions to be made and too long for decisions, once they are made, to have an effect. Simply by adding another layer of review or appeal to what we already have will do little to address the shortcoming, in fact, it may make it worse. My decision is therefore not to implement the RAD.
He made that statement in November 2005.
Madam Chair, I urge all senators to heed the words and actions of the former minister and consider their support of the implementation of the Refugee Appeal Division at this time.
We now would be happy to take questions.
Senator Goldstein: Thank you, Madam Minister, for taking very valuable time of yours and giving it to us. We all know how busy you are and appreciate the fact that you took the time to come here to give us a rather lucid exposé of your position on this matter.
There are three questions and one observation that arise from what you said. The first is that you said we need to ensure that we do not sacrifice the current level of protection in order to add a questionable appeal. I do not understand, and perhaps you can explain to me, how the addition of this appeal mechanism would sacrifice the current level of protection?
Ms. Finley: It goes back to what our goal is in terms of helping refugees. I believe that Canadians want to protect and help legitimate refugees, and there are millions of them around the world at this point in time. Sadly, some of them have been waiting in camps for almost 20 years.
The longer we spend, and the more time and resources we spend, on processing non-legitimate refugees — many of whom are often economic migrants, for example, or who have been directed to apply through the refugee route as a sure backdoor way into Canada — the less we can devote those resources to legitimate refugees around the world who are in the camps and need our help and whom we want to help. We would be sacrificing our ability to help those legitimate, long-suffering refugees for the sake of the majority currently in the system who are not actually determined to be refugees.
Senator Goldstein: That presupposes that your resources are limited. If you had sufficient resources, hypothetically, to deal with the addition of an appeal tribunal, surely that would not in any way adversely affect the current level of protection that you have and that we have in Canada available for legitimate claimants.
Ms. Finley: One has to wonder what would be sufficient resources. There is an ideal world where we would all have sufficient resources.
I am limited by a 24-hour day. There are days when I would like many more hours. The same is true financially. We all — individuals, governments and the nation — have limits on both our financial and human resources.
One of the challenges is finding people capable of doing the job. If the RAD goes through, it will require a specialized person who can deal not only with decisions based on fact but also with the judicial side of it. There are not that many people in the country who would want to do this job at the rate government would pay. That is a finite resource, whether or not we want to acknowledge it.
Senator Goldstein: You observed that the current system has multiple resources, including an appeal to the Federal Court. We agree, do we not, that this is not an appeal in the usual sense of the term but rather a process of revision or, as we say in French, cour de cassation?
Ms. Finley: It is the same sort of thing that the RAD would do. It is a paper review. There are different recourses of small-A appeal, and there are many opportunities within the system. That is why it takes so long for a final decision to be made.
Senator Goldstein: Your third statement was that the current refugee system is already in full compliance with international and domestic refugee law.
Setting aside for the moment domestic refugee law, in 2002 and again yesterday the United Nations High Commissioner for Refugees said the following:
UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process. It allows errors to be corrected...
The commissioner went on to say:
. . . a measure of safeguard was provided by the fact that determinations could be made by a two-member panel, with the benefit of the doubt going to the applicant in case of a split decision. With the implementation of IRPA on June 28th, this important safeguard will be lost.
Do you disagree with that statement?
Ms. Finley: Prior to IRPA being brought in there were two people and afterwards there was one, because it was found that we have a very rigorous and strong front-end decision-making process. If you trace through all of the processes, I believe you will find that only approximately 2.4 per cent of the initial decisions are overturned. When we had two and could have a split decision, the decision was always made in favour of the applicant. That was found to be redundant. By moving to one person with a robust mechanism at the front end, those decisions are upheld almost 98 per cent of the time. I think that is a higher rate of consistency than most systems have.
Senator Goldstein: The quid pro quo at the time, as indicated in parliamentary debates, was that people were satisfied with it going from two to one precisely because there would be a RAD, and not otherwise. Why are you now telling us that the procedure of a single person has become robust?
Ms. Finley: It has been upheld as decisions get made through the entire process and through the appeals, even once it gets to Federal Court. Over 97 per cent of the time, the initial decision is upheld. That suggests that the process which is in place and being used is sound.
Senator Goldstein: That is true of the Quebec Court of Appeal as well. Does that mean, therefore, that Quebec's Court of Appeal should be abolished? The majority of decisions of the superior court in Quebec and any other province are upheld by the Court of Appeal. Surely that does not mean that the Court of Appeal should be abolished.
Ms. Finley: No, I am not commenting on that at all. You asked me about my thoughts on one versus two, and I said that one appears to be working with about 97 per cent accuracy, which is better than most systems with which I have dealt.
Senator Goldstein: Your predecessor, Diane Ablonczy, who was the immigration critic when you were in opposition said, on June 1, 2005:
Mr. Speaker, I have the honour to present to the House today a stack of petitions signed by thousands of Canadians —
In fact there were 6,000 signatories, not 180 as was suggested by our previous witness.
— from right across the country.
The petitions deal with the provisions of the Immigration and Refugee Protection Act which was passed in this House in 2002.
The House will remember that this act provided that a refugee appeal division would be put into place. The House will also know that that provision of the legislation has still not been honoured by the government even though it is the law of the land.
These thousands of Canadians from across the country are petitioning the House of Commons . . .
She was seeking the putting into place, on behalf of the opposition at that time, of the RAD. In the space of less than a year, you have changed positions. Could you tell me why your position changed between 2005 and 2006 or 2007 or 2008?
Ms. Finley: I do not know that that was Ms. Ablonczy's personal position. If my constituents present me with a petition to be tabled in the House of Commons, it is my duty as a member of Parliament to do table it, regardless of whether I agree with the petition.
Senator Goldstein: You may want to read the statement.
Senator Di Nino: Welcome, Madam Minister. It is good to have you and your officials here.
You made a rather pointed comment in your remarks. I do not want to paraphrase, so I will read it from your presentation. You said:
Canadians rightfully expect our refugee system to help and protect legitimate refugees.
Could you elaborate on that in the context of Bill C-280?
Ms. Finley: I would be happy to. The best way to demonstrate what I am talking about is the dramatic upsurge we have seen in the last couple of years in applications for asylum, particularly coming from Mexico and Haiti. There is reportedly a real crackdown right now in the U.S. on illegal immigrants, and many of them are coming here. In fact, there have been programs organized by unscrupulous individuals falsely telling the illegal immigrants that Canada has a special program to accept them. They have been flooding across the borders, particularly into Quebec and at Windsor. The numbers are up dramatically. Mexico and Haiti combined represent one third of the total claims received so far in 2008, and that does not include their U.S.-born children, the numbers of which amounted to approximately 1,800 last year.
These people are coming here not because they fear persecution in the sense that we consider refugees being vulnerable to persecution, but because they are trying to find a way out. They know that because of our legal arrangements we cannot send them back to Mexico. They have been advised that the best way to get into Canada, to get a work permit quickly, to get social benefits and help with housing, is to apply as a refugee. They are told that if they are here for two or three years and have some more kids while here, they will get to stay.
People are taking advantage of this good system — because you can only abuse a good thing — to come here for the wrong reasons. These are not people who are at risk of torture or are being persecuted for religious beliefs or ethnicity. Many of these people are economic migrants. That is why 90 per cent of the Mexican applicants processed last year were rejected. Those people are not legitimate refugees compared to individuals who have been in camps for many years.
It is an abuse of the system, and Canadians do not want to see that. They do want to help those who need and deserve our help, such as the Karen refugees to whom we have opened our doors, the Bhutanese and the Iraqi refugees, whose numbers we have committed to doubling this year. They are truly refugees.
Senator Di Nino: They plug up the system.
One of the other comments heard several times through testimony given by witnesses dealt with the eventuality of Bill C-280 passing. There were some strong opinions expressed for the need for a coming-into-force amendment in order to allow the government and the IRB appropriate time to implement the RAD.
One of those actually was Mr. Abraham, the UNHCR representative to Canada. Do you have an opinion on that and, if so, what do you think would be an appropriate time frame? How long do you think a reasonable time frame would be to put the provisions of Bill C-280 into action?
Ms. Finley: Obviously, I am not in favour of the RAD to start with and neither were my four predecessor ministers, three of whom were Liberal, one was a Conservative so this is a nonpartisan thing. All of those who have had to address it agree this is not required and is not a good thing.
That being said, if the bill is to go forward, I would want to see it work. It is not enough to say, "We have passed it and therefore it exists.'' It does not.
This would be a new organization and would require recruiting very specific people who are difficult to find. They would need specialized training. They would need facilities, support staff and computer systems. The whole system itself would need a computerized tracking mechanism.
At a minimum, and based on my conversations with the chair of the IRB, I would say it would take at least a year to do it properly. Not doing it properly would mean this was just a paper monster. It would tie everything up but deliver none of the benefits that it is intended to. From a pragmatic point of view, it would need a year.
Unfortunately, there is no provision in here for a coming-into-force clause. Neither is there a transitional clause in terms of who currently in the process would be eligible. Would people already refused be allowed to apply for this or would it be only on a go-forward basis? The courts have made certain decisions around that.
If we were to suddenly flip the switch and say that RAD exists and everyone can apply as Bill C-280 is currently written, it would break the system. We are talking 40,000 people in the backlog right now. It is estimated that, for each one, they would have access to another five months of process. That will absolutely crumble the entire system.
For very pragmatic reasons, if this bill is to go forward, it needs a one-year wait time and a coming-into-force provision, but also a definition as to who would be eligible for consideration by the RAD.
Senator Di Nino: I was about to ask you about transitions. In your comments on page five, you talk about the transitional provisions. You touched about that. I will ask: Would you like to see a transitional provision in this bill, if the bill were to pass?
I would agree with you that we do not need it. However, you know the reality of Parliament. If the bill were to pass, you would certainly encourage us to fight for an amendment to include a transitional provision?
Ms. Finley: That is the only responsible thing that can be done. Simply bringing it into force will not help anyone. It will only make it worse for everyone — both legitimate and illegitimate applicants — because it is not doable and it is not defined.
We do not live in a world of unlimited resources. It would be irresponsible to expect an organization like the IRB, which is already facing increases of 50 per cent applications this year, to suddenly divert their attention and their existing resources to something new, without a plan, without limits on who can apply and without the resources in terms of time and people. You cannot hire people unless you take the time to find the right people.
I am not opposed to an effective appeal mechanism but, as this bill stands, it would not be effective. It would just cripple a system that has already been criticized for being too slow, drawn out and complex.
Senator Di Nino: I would imagine you would also agree that, if we did not have a transitional provision, those legitimate refugees we spoke of a few moments ago would be waiting a great deal longer. It would also help us in the objective of what we are so well-known for in the world: Being a caring nation that does a very good job of protecting refugees.
Ms. Finley: That is absolutely right. I think of the refugees in UN camps around the world, who are still there. My heart breaks when I think that their opportunity to come to Canada as a convention refugee is being put off for up to three years by these illegitimate applicants — people who are coming as economic migrants who are trying to use this as a back door around the over-bloated immigration system.
Senator Di Nino: It is a system which cannot handle the volumes that we are being presented with.
The Chair: I have Senator Jaffer and Senator Munson on the list. However, these questions have generated supplementals from Senator Goldstein, Senator Nolin, Senator Munson and Senator Jaffer. Therefore, can the supplementary questions be really short? I will proceed with the list in the order I received them.
Senator Goldstein: Your discussion of the need for a transitional provision, if this were to be adopted, is a persuasive one. Senator Di Nino made exactly the same point in a very eloquent manner, as well, when he made his speech in this connection in the Senate.
What kind of transitional provision would you look at? Would you be saying that the RAD, if it comes into force, would apply only to those whose applications that are pending before the IRB and not to others? Would you take a cut-off date, such as any decision rendered on or after January 1, 2006 or 2007? Where would you see a transitional provision which, from your perspective, would not overwhelm the system?
Ms. Finley: There are a number of options. I do believe, though, that there have been some Federal Court rulings that I know we had to comply with. For example, as we were bringing forward the immigration reforms in Bill C-50, we had to have a cut-off date on that. All of the old applications and existing applications had to be processed under the rules of the day. That was a court-imposed rule on us.
There may be some legal reasons of which I am not aware. Ms. Lyon might know better. However, ideally, the transition day would be the coming into force day. Otherwise you are starting with a self-created backlog, which is not fair to anyone in any part of the system.
Senator Goldstein: I understand that.
Ms. Finley: That would be my preference.
[Translation]
Senator Nolin: Madam Minister, you are talking about transitional provisions, a hypothetical amendment. I want to make sure I understand you. The transitional provision would enable you to delay implementing section 110. However, the way I see this section, it gives everyone the right of appeal. By your amendment, do you want to reduce the right of appeal or do you want to delay implementing the act?
Ms. Finley: Implementing the act.
[English]
Senator Nolin: However, would you maintain the right of appeal to everyone in your amendment?
Ms. Finley: We believe everyone deserves to be treated fairly and equally.
Senator Nolin: The argument is the jam that it would create.
Ms. Finley: Let us say we were to choose a coming-into-force date 12 months out. Then only those applications that came in as of that date would be considered; nothing that was in the prior inventory would be.
Senator Nolin: Section 110 was not in force before that date. Okay.
Ms. Finley: You would start with a zero inventory.
Senator Nolin: Day one of the application of section 110.
Ms. Finley: Anyone who applied as of that date.
Senator Nolin: Thank you.
Senator Munson: Madam Minister, it really does not make any sense if we say yes or no. If we say yes to this as the Senate of Canada, it still must be proclaimed and we are still, at that point, back to square one; that is, back to 2002. You still have the hammer. You can still say no.
Ms. Finley: I believe it is a Governor-in-Council decision and not a ministerial decision.
Senator Munson: It would be an executive decision. I think that has been the complaint in the past few years over the whole process from the perspective of the Canadian Bar Association. That is, it is contrary to the rule of law because it can be set aside at the discretion of the executive. Going through all of this exhaustive process, the executive reserves the right to say no. That is still a possibility.
Ms. Finley: The whole point of Bill C-280 is to bring it into force and to override the executive prerogative.
Senator Munson: I needed that clarification.
Senator Jaffer: I was pleasantly surprised with one of the things that you just said in response to one of my colleagues, namely, that you are not against an effective appeal. May I please ask you to tell us what you mean by that?
Ms. Finley: In any process where there is decision-making, we, as Canadians, expect that there is a second court of opinion. We have the house of second sober thought.
Senator Jaffer: This will be quoted many, many times.
Ms. Finley: I am sure it will. Within our court system, we have levels of appeal and we have judicial reviews. There are a number of different mechanisms. Whenever people are dealing with people, there is an opportunity for error to be made.
The question, however, becomes how many opportunities, how many "go arounds'' or do overs do you get? Right now, we have four opportunities. If we bring in a fifth decision-making level, then why not a sixth, a seventh or an eighth? How about 72? What is the magic number? It reminds me of my days in business when we would do a requisition for something or an expense claim for someone and you would sign off. The supervisor would sign off, then the manager, then the director and then the VP. Which one of these four people is taking responsibility for the decision? The first two will not bother because they will be overridden anyway. If there is a problem with it, they will go to the vice-president and not to the immediate supervisor. It created a lot of work for people but it was not effective because no one was taking accountability.
In this case, yes, there needs to be an effective appeal mechanism. Frankly, I do not see this as effective. I see it as redundant. It does not recognize that the applicant may have new information. Nor does it recognize a situation in which I found myself frustrated, when we found new information in a refugee claim that actually proved the applicant to be a bit of a rotter and proved that they had lied in their application but we could not submit that new evidence, either.
The system is not effective when you cannot have the balance there. When it is simply redundant, why bother? When we already have so many other mechanisms there, why chew up those precious resources that we could be devoting to cleaning out the people who are, and discouraging the people who are not, legitimate refugees but who are merely asylum applicants so that we can focus our energies on helping legitimate refugees who are in need.
The Chair: Senator Jaffer, did you have other questions?
Senator Jaffer: I did have a follow-up question. You are saying four or five processes, but it is my understanding that the four or five processes are different processes. PRRA is a process that just looks at the risk of removing the person. The H&C is whether this person is now well-established in our country; we look at that. The Federal Court process is not really a review. We know the problems with that; you already talked about them. I do not know what the fourth and fifth processes are that you talking about. There really is not absolute review of the decision. There is not an appeal on the review of the decision as far as I understand it.
I must compliment you in that you have also seen that there is a problem. This is probably against my party, but I am hoping that you are there long enough to put in an effective process. There is not an effective review process in place, and that is what the concern is, namely, that there is not one.
Ms. Finley: There are a number of opportunities for decision and a number of avenues to which these people can come into the country legitimately. My concern with the RAD is that it is a repeat performance. For starters, it is a paper exercise. It is a review of what has already been done, so it is second guessing the original process. It does not allow the applicant to provide any new information. There is no oral hearing. It does not allow the IRB to provide any new information to the application. Even if circumstances have changed in their home country, for example, that cannot be factored in to help or hinder the application. There is no value being added. It is just repeating something that has already been done. We have lots of opportunity to repeat stuff around here. That does not make it the right thing to do. I think do it once; do it right. The rates at which the courts uphold our decisions say that we are doing it right, but we are not getting enough of it done.
Senator Jaffer: Madam Minister, we are the great country that we are because we look after every individual. Around the world, we take pride in that. I think you would agree that every decision is not right. Yesterday, when we heard from the different church groups and the issue of sanctuary, obviously there were decisions that were not correct. How do you protect the people in these cases? I am sure you will agree that the members do make mistakes. How do you protect people?
Ms. Finley: Whenever you are dealing with people, yes, people are human and they will make mistakes. I am not perfect, but I never claimed to be. I take responsibility for my mistakes. I believe that people do the best job they possibly can. There are a number of ways of protecting people. We try to ensure that people are properly trained and that they are prepared and able to do their job and we select people who are capable. That is the first step. If an error is made, then at every stage of this process — and this has not been talked about much that I have noticed in these discussions; maybe I missed it — there is an opportunity for judicial review. If the applicant or their representative feels that a mistake has been made, then they can go to judicial review. That opportunity already exists.
That is another thing that is, as we say at home, gumming up the works. It is bogging the whole system down. There are so many opportunities for various forms of review or small "a'' appeal that this one is redundant. It does not add anything new; it does not add any new value.
Senator Jaffer: You are absolutely right that every stage there is an opportunity for judicial review but my understanding is that you need leave for judicial review and leave is rarely granted. Reasons are not given, so it is hard to know why leave has not been granted. It is not as accessible or as available as one would think.
Ms. Finley: That speaks to the quality of the decision-making.
Senator Jaffer: I would like to disagree.
Ms. Finley: This is something that I learned when I first became a member of Parliament and was dealing with cases in my riding. I particularly had it reinforced when I arrived at Citizenship and Immigration Canada. We do read a lot in the newspapers about various cases. Some are very sad; some appear to be tragic. The one thing I have learned with these cases is that there are three sides to every story. The rest of the story cannot be printed in the newspapers. Either for privacy reasons or for other reasons such as security reasons, I cannot divulge the story to the newspaper. You have individuals who are desperate to come to this country because it is so great and because it is so much better than what they left that they will do and say anything. It can be a very emotional appeal.
I am not allowed to put the rest of the story out to the media. At times, there are legitimate reasons for not wanting those individuals here, but they will not tell the media that part of their story.
Senator Jaffer: Minister, yesterday we heard from Mr. Pierre Gauthier, Chair of St. Joseph's Roman Catholic Parish Refugee Outreach Group. He said:
... 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 enough time to do this job. I cannot understand how five ministers in a row neglected their responsibilities before the Parliament of Canada.
Can you answer his question?
Ms. Finley: It is not uncommon for various parts of various bills or statutes not to be brought into force at the same time. One of your colleagues, Senator Banks, is the sponsor of Bill S-207 in respect of any legislation that has not been brought into force after a period of ten years or more. I would suggest that there are many such pieces of legislation and it can happen for any number of reasons: circumstances might change, availability of resources, or pending court decisions. In the case of the latter, perhaps a court decision was made that would render the statute ineffective. There are many reasons for not bringing into force a piece of legislation. It is not uncommon. As I mentioned earlier, four of my predecessors have agreed that the RAD would not be good for refugees, particularly as it stands and without any transitional provisions or pragmatic aspects to actually make it work.
Senator Jaffer: What would you require in transitional provisions?
Ms. Finley: First, you would need some time to make it happen.
Senator Jaffer: How long?
Ms. Finley: I suggested a year, based on my conversations with the Chair of the IRB. A new organization would be started from the ground up with no existing structure and very stretched resources because the workload at the IRB is increasing by 50 per cent this year. They have a few other things on their mind. As well, there would need to be a definition of who would be eligible to apply to the RAD on day one. If it is not spelled out, the 40,000 people currently in the process would conceivably have the right to apply. Would the people prior to 2002 have the right to apply? All of a sudden, 100,000 people might try to apply.
Senator Jaffer: You spoke eloquently about strengthening the system, and I commend you for that. According to the testimony heard before the committee, there are 58 vacancies on the IRB, which means that it functions at two- thirds capacity. Why are there 58 vacancies?
Ms. Finley: A couple of things happened. First, when we formed the government we had an independent review and changed the process for appointing people. Obviously, it took some time to bring the right people in to staff the new process. Then, we began a country-wide search for new applicants because, within the first few months of the new government, about 100 vacancies came up, so we had to set the new process in place. We raised the standards. Hitherto, applicants would write a test and what they scored was irrelevant. We insisted that anyone who applied had to not only write a test but also to pass it. Our success rate has not been as high because we want specific competencies when we appoint people.
We have made well over 100 new appointments and reappointments, and there are more in the works. Currently, there are 43 to 49 vacancies. We have also increased the total number of seats on the IRB because we wanted to do more. We have raised the bar in terms of quality and quantity, but we have made well over 100 appointments to date.
Senator Munson: Most of my questions have been asked by other senators but I want to set the record from the perspective of the United Nations High Commissioner for Refugees. Madam Minister, you talked about the judicial review but in the view of the UNHCR, judicial review as provided for in the Canadian system does not constitute access to full and fair procedures. Is that not a stinging criticism?
Ms. Finley: Who said that?
Senator Munson: The UNHCR.
Ms. Finley: Which individual?
The Chair: Mr. Abraham.
Ms. Finley: I was quite surprised by Mr. Abraham's testimony yesterday. I have worked with the UNHCR since I moved into this role. I have had a very cooperative relationship. In November 2006, the United Nations High Commissioner for Refugees, António Guterres, said:
It is fair to say that Canada's system is among the very best that exists. Canada's system in terms of quality and fairness offers more guarantees than other systems that we know.
I was surprised by the statements made yesterday. We have a strong, quasi-judicial decision process at the front end, which the UNHCR has held up around the world as a model for others to follow.
Senator Munson: Briefly, what do you, as a minister, then say to the Canadian Council for Refugees, to Amnesty International, to the Canadian Bar Association and to many others who have appeared before the committee and argued passionately for this other tier of refugee review. You never know when you might miss someone and that someone goes back home and is killed by a regime? What is your message to them? Is it about vested interests on their behalf?
Ms. Finley: There are a couple of aspects to consider. What do they want our refugee system to achieve? What is their ultimate goal? Is it to process everyone who applies or is it to help true refugees? My goal is to help legitimate refugees. I want a system that is efficient, effective and fair, and I do not think it is fair if someone has to wait three to five years. If they have already waited three to five years in a very complex system with many people around who have vested interests in prolonging that process, it is not fair that they should have to wait even longer for us to implement a system that will not give them any greater advantage.
I go back to how we, as a country, can best live up to our goal and our responsibility of helping legitimate refugees gain asylum here sooner. That is it. To do that, we have to tackle a number of things, including cutting down on abuse of the system. How can we possibly have one in five applications coming from Mexico via the U.S. with their U.S-born children? We cannot send them back for legal reasons; we are stuck with them. It is a huge burden on the provinces and territories. As well, 90 per cent of them are found not to be true refugees. Consider how that will clog up the system and prevent us from helping those who truly need and deserve our help.
Senator Oliver: Minister Finley, your presentation was clear and persuasive. I heard the response you gave to the questions posed by Senator Di Nino. As I understand your evidence, you, like your five predecessors who have dealt with this section, do not favour implementing the RAD. As well, you said that if you had to implement it, there would have to be some conditions, such as a transition time and a period of time to train staff to do their job.
You also said in your statement that the RAD would not provide failed claimants the chance to introduce new evidence or changed circumstances since the initial decision was made concerning their case because it is a paper review and does not allow new evidence.
From that, may I assume that your view is also that if we need to have this RAD, which you do not want, let us do it right and build in a mechanism that gives people the protection they want?
Ms. Finley: It is a two-way street. You are right; I do not want to do it. My four predecessors and I, from both major political parties, did not want to do it.
However, if we do, let us get it right. Let us not make a bad situation worse. If we do not figure out how to make it right through this legislation, it will be wrong and it will only bring more harm. That is not what we are here for. That is not what I am here for.
Senator Oliver: If you have to do it, would you favour an amendment that would let them bring in new evidence as a number of other witnesses have suggested?
Ms. Finley: There are two sides to that. The first is that it will be wide open and the process will take even longer, which is all the more reason not to do it for me. It becomes how bad can you make it.
If the applicant has the opportunity during the process to present new information at some point, then the minister needs to have the same opportunity. However, my point is that it would not be the RAD anymore as it is defined if we were to allow the new information. Not allowing new information is not helping the process.
Senator Oliver: I agree.
[Translation]
Senator Nolin: There is another small thing I would like to understand. The right of appeal or the right of review is available to everyone; I understand that there is an initial screening done by a civil servant, is there not?
[English]
The first level is one of your civil servants. I am not referring to the board. What exactly are those steps?
Micheline Aucoin, Director General, Refugees Branch, Citizenship and Immigration Canada: What the CIC or CBSA officials do is an eligibility review. It is something they do within 72 hours to ensure that the person is eligible to proceed to make a claim at the IRB. However, the actual review of the claim on the merits is done at the IRB and not by CIC or CBSA.
[Translation]
Senator Nolin: I agree with you and with your reasoning. There is no point in adopting an amendment or enforcing an Act that will be problematic. You are pragmatic, and so are we. You agree that, under Canadian law, there has to be an appeal process when a decision determines rights; there has to be an appeal process to verify if justice has been done and if the person who is rendering the judgment is competent. Therefore, there are various avenues.
But although the right of appeal provided for in section 110 concerns only part of the process, you will have to review the whole process, given the volume of claims. It is not just a matter of having a quasi-judicial process at the end, but of having, right from the start, instead of purely a little prima facie compliance review, civil servants who will have a lot more power, who will make decisions and eliminate a large part of the bulk of your claims, sending only claims that merit a review to the quasi-judicial process. The current process does not seem to contain all the protections to ensure that justice has been done effectively. I am pragmatic, and I invite you and your colleagues and your public servants to perform this review. In Canada, we cannot say that the system is not good. Canadians want an appeal system that respects the rights and values we espouse. It cannot be said that the system is poorly designed, that we disagree, that there is no appeal.
An appeal for all at the outset! Our lawyers will tell you that there are no automatic rights of appeal. Leave to appeal has to be granted. Even at that, there is a bottleneck. That being said, this is a very respectful comment, and I understand your opinion.
[English]
The Chair: I guess that was not a question.
Senator Nolin: The minister spoke about being pragmatic. We are all trying to find a way to respect Canadian values. It is not a good answer to say, well, the system that is in the law now is not good so good-bye and no thanks.
We are paid to produce good laws.
The Chair: Yes, and your bottom line there was the good laws.
We are here talking about refugees and they are defined under the UNHCR process which is about people who have horrific situations as you said. They have no possible way of being resettled back into their own homelands, often waiting years in camps. Therefore, the whole refugee process was envisioned on that kind of process.
We also have built this country from legitimate immigrants who did not see their life improving in their country. They are not refugees, they are immigrants. They are people who have skills, who have initiative and want to better themselves and want to give their children a better life.
When we have all these people coming from Mexico and other places, they have been steered to claim refugee status because they will be there for a while, maybe they can earn something to help their family and also gain a foothold as it is said.
I understand that are we looking at our immigration process because we are in a special relationship with the United States and Mexico. We want to get the word out that Canada is open for immigrants and that is the preferred way if you want to better yourself or if you want to move to Canada. Therefore, we want them to respect the refugee process for what it should be.
Ms. Finley: You are absolutely right. That is what Canadians want. That is what we want and we have certain challenges right now.
We have a backlog that is over 925,000 people which means it can take six years to get an application reviewed. Therefore, people say if I apply as a refugee, then I can get a work permit right away with all sorts of social benefits and I will short circuit that six-year wait time. Meanwhile they will create links and establish themselves here with a job, maybe volunteer at the church, get married and have babies so their children are now Canadian citizens.
Unfortunately, too many unscrupulous people have been recommending that. It reached the point last year that we launched a major awareness campaign in Florida and worked with U.S. officials to go after agencies that were advocating these moves. U.S. authorities shut down many of these activities, but we are desperately trying to tell these claimants that they must come in through regular channels.
If the word gets back that only one in 10 is getting through the process, I think that will help to dampen expectations a bit. I am hoping it will, but it will take time. In the meantime, we will end up with several thousand more people.
We are such a welcoming country that once they come in and their eligibility is determined, then it is a long, slow process. They will probably be here for three years.
We must get tougher on how we move the failed refugee applicants out of the country. We need to distinguish between the real refugee and failed asylum applicants. We have to find better ways to remove the failed asylum applicants from the country sooner. The longer they are allowed to stay, the harder they are to find and the likelihood lessens that they will ever become official and legal permanent residents.
The Chair: Madam Minister, thank you for coming and giving your comments on Bill C-280 and the broader issues of immigration and refugee work. I would also advise you that this committee will be studying the human exploitation issue in its broadest sense. I take your point that often people are exploited when they come and that does not necessarily make them bad applicants here. However, we want to make the system free and fair and, above all, we would not want people to benefit from the misery of other people.
Senators, we will now adjourn, but we will go to clause-by-clause at our next meeting on this bill.
The committee adjourned.