Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 11 - Evidence - June 22, 2010 - Morning
OTTAWA, Tuesday, June 22, 2010
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 9:02 a.m. to study Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.
Senator Art Eggleton (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
Today we are spending pretty much a full day talking about Bill C-11. We have with us via video conference the Honourable Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism. We have five officials to help us go through the bill after Mr. Kenney signs off.
We much appreciate your doing this, minister. We know you are travelling and it is busy. I am not sure what time zone you are in, but it is very kind of you to appear.
Also, congratulations on the effort in the House of Commons. We read it with much interest and heard about it in many different ways; but you ended up being able to bring various parties and interests together to work out some solutions to various concerns people had.
With that, welcome. I turn the floor over to you.
Hon. Jason Kenney, P.C, M.P, Minister of Citizenship, Immigration and Multiculturalism: Thank you, Mr. Chair and honourable senators for the opportunity. I apologize I am not able to appear in person. I had already scheduled attendance at tomorrow's 25th anniversary commemoration of the Air India bombing in Ireland, so it was not possible for me to be in Ottawa today, as I am sure you will understand. Thank you for your accommodation.
As well, I thank Senator Seidman for her sponsorship of Bill C-11 in the Senate. I appreciate the diligence with which I am sure all honourable senators will consider this very important reform to Canada's refugee system.
[Translation]
Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act, is important legislation, which, if passed, will allow Canada to help those who truly need Canada's protection and do so much more quickly.
Canada has a long tradition of helping those from around the globe who seek asylum here. Obviously, that is part of our history since we welcomed slaves from the United States, who came to Canada during the 19th century. But all parties recognize that we also have a broken asylum system that has been characterized by ongoing large backlogs and slow processing times.
Our system is at risk because too many, who are not refugees, try to use it as a backdoor into Canada, abusing our generosity and violating our laws. We have some 60,000 people in the asylum queue in Canada — the largest number of asylum claims of any developed country.
[English]
It currently takes about 20 months for a refugee claimant in Canada to get a hearing at the independent Immigration and Refugee Board. The board determines that almost 60 per cent of our asylum claimants are found not to be in need of Canada's protection; they are not genuine refugees.
Band-aid measures have been tried in the past to address these problems but they have not worked. Additional money was added to the system, which reduced the backlog for a short period of time, but we always saw the backlog in asylum claims go back up and the processing times extend. The problem is that the long wait times act as an incentive, a pull factor for false claimants to come to Canada because it can take several years to remove them.
That is why we need to reform Canada's asylum system, as Bill C-11 proposes to do, so we can more quickly remove those who make false claims. We want to make our system fairer and give faster protection to those who are genuinely in need of it.
I believe that this bill strikes the right balance — "balance" is the key word — and it promises real and balanced reform. As you probably know, during its passage through the House of Commons, there was vigorous debate. Opposition parties and stakeholders made constructive suggestions about the original iteration of Bill C-11. This led to a truly deliberative legislative process, which led to the acceptance of a number of amendments and, consequently, the bill that now stands before you in the Senate.
I would pick up on what you said, Mr. Chair, that the fact that we have managed to achieve all-party consensus in the House of Commons on such a delicate issue as refugee reform is virtually unprecedented in my 14 years in Parliament. I think it speaks well to all parliamentarians who took the issue very seriously and who had the common objective of an asylum system that will be both fast and fair.
Let me review the major features of the reforms in the bill and the other operational and regulatory changes that we propose.
[Translation]
If passed, the reforms in Bill C-11 would allow Canada to give faster protection to people who are real victims of persecution and torture. It would allow us to welcome to Canada more refugees from abroad, many of whom live in UN camps or in urban slums.
And at the same time, it would try to prevent the abuse of our generosity by people who come through the backdoor of our asylum system and who don't really need our protection. The result would be a streamlined system that would actually add greater procedural fairness, through the creation of what's known as the Refugee Appeal Division. This would allow failed claimants a full appeal of their claims.
In terms of our system, Bill C-11 would provide for the following. First, the creation of a new interview with an Immigration and Refugee Board public servant, in place of a written form, early in the claims process. In our opinion, that would speed up the process and make it more efficient. Second, independent decision makers at the Refugee Protection Division of the IRB who are public servants rather than political appointees. That means that people who hold the hearings for asylum claimants will be, after those reforms, IRB officials rather than cabinet appointees. Third, a new fact-based refugee appeal division that even surpasses what refugee advocates have requested for a long time.
The appeal would also substitute for a pre-removal risk assessment for failed claimants for one year, because there will be a moratorium of one year on applications for pre-removal risk assessment for failed claimants.
[English]
In terms of our process, passage of this bill would result in a new system that would include the following elements: first, a protection for refugees determined to be in need of protection in about three to four months, rather than the current 20 months, while accommodating the needs of vulnerable claimants. That is to say that if a claimant is determined at the initial interview stage to be particularly traumatized, for example, the decision maker or the officer would have the opportunity to schedule a later hearing but we would anticipate that on average they would schedule the hearing in about 90 days.
The second element is: removal of failed claimants in about a year, rather than several years, which would yield about $1.8 billion in savings over five years for taxpayers, particularly at the provincial level.
The third element is the possibility of expedited processing of claims from designated countries of origin, as well as the identification and expediting of obviously fraudulent claims. These in the bill are what we call manifestly unfounded claims, a legal concept well recognized by the United Nations High Commissioner on Refugees. These so- called fast-track claims would be dealt with much more quickly. The initial hearing for a claimant from a designated country would occur within about 60 days following the initial interview. Their appeal would be occur within about 30 days of a failed audience at the IRB, and they would then have a non-suspensive right of judicial application for judicial review to the federal court, which is to say that following a failed appeal to the Refugee Appeal Division, they would then be subject to removal so they could make an application for judicial review to the Federal Court, but it would not suspend their removal.
Similarly manifestly unfounded claimants would be determined as such by the refugee protection division decision maker. If their claim was found not to be a well constituted, well founded fear of persecution, they would then be put in the fast track with the Refugee Appeal Division decision within about 30 days and, again, they would have a non- suspensive right of judicial appeal to the Federal Court.
These are very important tools to help us address waves of unfounded claims from democratic countries such as in Portugal, around the year 2000, Central Europe in the mid-1990s, Chile in the year 2000, Costa Rica in 2003-04, and currently Hungary, our number one source country for claims, 2,500 of which were filed last year. We are getting about 300 to 400 a month, and 97 per cent of the Hungarian asylum claimants are going on to abandon their claims.
These reforms would provide for $540 million in new resources for Canada's refugee system. This would include a 20 per cent increase in the number of overseas refugees selected in cooperation with the United Nations High Commissioner on Refugees and resettled in Canada from camps, as well as a 20 per cent increase in settlement support for government assisted refugees through what we call the Refugee Assistance Program.
Grosso modo, what we are proposing to do here, Mr. Chair, is to actually expand Canada's tradition of protection for refugees by welcoming more UN convention refugees, more refugees through our government assisted and privately sponsored programs, give them more support for successful integration to Canada, give faster protection for bona fide asylum claimants who come to Canada, but also faster removal for those who are clearly false claimants.
This has been widely endorsed. As you know, the House of Commons adopted the bill at third reading on division; again, quite remarkable. Every editorial board in the country of every newspaper that I have seen has endorsed the bill, both before and since the amendments at report stage in the House of Commons. Also, I believe this is a marvellous opportunity for Canada to refurbish and re-enhance our humanitarian tradition of protection while establishing a system that is more efficient and that will give us tools to address waves of false claims that seek to undermine the integrity of our immigration system.
Mr. Chair and honourable senators, thank you for your time. I and my officials are prepared to take any questions you may have.
The Chair: Minister, we appreciate the process that the bill went through in the House of Commons and what we want to do here in our review is look to see if there are any unintended consequences that came about as a result of all these changes that were made. We will be spending much of today looking at the bill in that light.
I have three questions. First, on the implementation of these amendments, some of it will happen immediately, some of it will take two years, and even one provision will take three years. We all know the controversies over this system and how important it is to keep the confidence of the public with respect to the fairness of the system while, at the same time, as you say, making it fast as well. How will this work though in this staged implementation in a way that will help keep public confidence?
Mr. Kenney: That is a very good question, Mr. Chair. First, the bill does provide for maximum time for certain elements of reforms to be put in place, for example, a maximum of two years following Royal Assent for the implementation of the Refugee Appeal Division and other elements of the new system.
We would anticipate that all of those new elements will come into place effectively at the same time. Let me also say that we anticipate that the new system will come into place between 12 months and 18 months after Royal Assent. I am hoping that it will be quicker than later, but this is a very complex process with many moving parts. We are adding an entire new section to the IRB. We are adding very significant additional resources to the CBSA for removal purposes. We are piloting a new project — Assisted Voluntary Returns. We are creating the new preliminary interview at the IRB. We have to hire a whole new cadre of public service decision makers at the Refugee Protection Division, and of course there is an enormous amount of regulatory work. The IRB has to draft entirely new rules for this process.
This is a complex process. I have met with Chairman Goodman from the IRB. We have had an initial discussion about implementation. However, just to give a sense of how this would happen, at some point between 12 months and 18 months following Royal Assent, we would pick a day for the time when we are ready to begin the new system, to launch it, and a claimant who arrives in Canada from that day forward will go into the new system on the accelerated timelines.
For example, let us say the new system comes into effect on September 1, 2011. Someone who makes a claim that morning will then be put into the whole new system. They will have the benefit of the initial triage interview, as we call it. If they are a regular stream claimant they will have their RPD hearing in about 90 days. Then they will have their Refugee Appeal Division decision in about four months and will then still have access to application for judicial review to the Federal Court. They will then fall into the more expedited removals timelines of the IRB if they are found to be a failed claimant all the way through.
We see the whole system being implemented simultaneously. I am encouraging all the actors in the system to move toward implementation as quickly as possible.
The Chair: I will ask you about designated countries. This provision has raised some concern. In some countries, it may not be so much the policy of the government that persecutes people as things that happen in communities or even families. I think of the gender problem which results, in some cases, in women being persecuted. We have seen that in even Canada where honour killings do occur. The government policy of a country may not have a bad record over all, but there may be these situations that exist in communities, which we know happens in many parts of the world.
I will give you another example before you answer. I am told that in the U.K. they have a designated list, and one of the countries on the designated list is British Guyana, which, for all intents and purposes, seems to meet the criteria, but they also have laws against homosexuality, which means that a person being sent back there could be persecuted.
How will these situations within countries affect the designated country provision?
Mr. Kenney: Mr. Chairman, that the United Nations High Commissioner for Refugees has consistently acknowledged that there are such things as designated safe countries from which, there is a presumption, there are less likely to be bona fide refugee claims than other countries. It is on that basis that most of the Western European democracies have developed their asylum systems. Most of them have a fast-track system for claimants coming from designated countries, typically known as safe countries of origin.
That is not to say that we can presume that 100 per cent of the claimants coming from a designated safe country are not in need of protection. It is always possible that there will be a case of individualized risk, such as you have pointed out. Even from a country that complies with international human rights norms and generally provides state protection to vulnerable citizens, it is always possible there might be an outlying case.
That is why, Mr. Chairman, the reforms we propose in this bill do not exclude access to the asylum system for claimants coming from designated safe countries. Every claimant, regardless of from which country they come, whether or not it is designated safe, would have the same access to an independent hearing based on the evidence of their claim at the Immigration and Refugee Board on the merits of their case. The fact that their country has been included on the designated list would not be prejudicial to their claim. Their claim would be considered on its merits.
A homosexual from British Guiana, if British Guiana were a designated safe country, or a woman coming from a European country who argues that she cannot find state protection anywhere in the European Union, would still have a full and independent hearing on the merits of their individual cases at the refugee protection division. The key element of the compromise in the House of Commons was that they would all still have access to the new refugee appeal division at the IRB based not only on the legal process at the initial hearing but also on the facts. They would be able to furnish new evidence, if there was any.
We are offering every claimant, regardless of the country from which they come, a series of legal protections that go far beyond the requirements of either the Charter of Rights and Freedoms or the United Nations Convention Related to the Status of Refugees and the United Nations Convention Against Torture. In fact, Mr. Chairman, people coming from the kinds of situations to which you refer — victims of domestic violence coming from developed democracies, or gays and lesbians coming from developed democracies who may have claims — would, under these reforms, have more procedural rights and fairness than under the status quo, which lacks a fact-based appeal. Those who are understandably concerned about cases of individualized risk should, and I believe now do, support the bill, because it gives everyone access to that appeal.
The only difference is that it moves those claims along more quickly, but hardly in a draconian fashion. A claimant from a designated safe country would have a hearing in 60 days. That compares to the fast-track systems in Europe in which they often have a hearing in a few days. In Portugal, I think it is nine days. In many Western European countries it is one hearing in a matter of days or weeks and then removal for claimants coming from designated safe countries. We are, if anything, erring on the side of fairness and generosity in this system with a 60-day initial hearing, a 30-day appeal and then removal.
We need this tool to address these problematic waves of false claims from democratic countries. I do not think most Canadians understand why our number one source of asylum claims now is a European Union democracy for which we have an acceptance rate of well under 1 per cent. We need a tool to send a message to the people, often commercial operators or even criminal networks, who facilitate those irregular migration flows that we will not tolerate. They will not be able to stay in Canada for years. Rather, if they are false claimants, we will have them removed in a matter of months.
The Chair: I appreciate your answer. I just hope that the people who administer this system will bear all of that in mind. I am sure that you will ensure that that happens.
My final question has to do with humanitarian and compassionate applications. I believe this also arises in another case where you can become involved. The bill says that in humanitarian and compassionate applications the minister may not consider factors taken into account in determining fear of persecution or in determining that someone is at risk of torture, death, et cetera. Yet, the bill provides that the minister must consider elements related to hardships that affect the foreign national.
What is different? What is included? Surely fear of persecution or death is part of a hardship. How does that get sorted out?
Mr. Kenney: I will explain the rationale for the amendment. The initial hearing at the Refugee Protection Division and the appeal at the Refugee Appeal Division both constitute an analysis of the risk faced by the claimant. Will they face a risk of torture or threat to their life if returned to their country of origin? Under the current wording of the Immigration and Refugee Protection Act they can also file permanent residency on humanitarian and compassionate grounds, and that assessment, amongst many other factors, also includes an assessment of risk. Our position is that once you have had two negative risk assessments — that is, once an IRB officer has looked at your case and said that you do not face risk if returned to your country and a refugee appeal decision maker has made the same decision — we do not think it is appropriate to have a third, redundant, risk assessment based on that legal criteria of risk, which is now embedded in sections 96 and 97 of the Immigration and Refugee Protection Act.
We propose giving two opportunities at a risk assessment and not a third, redundant opportunity. We will narrow somewhat the criteria that decision makers take into account when they assess an application for permanent residency on humanitarian and compassionate grounds.
Undue hardship would include cases such as someone subject to removal who has a serious medical condition; they cannot be removed without facing undue hardship. It might be someone who now has children in Canada. If they were removed, perhaps they would face undue hardship, in the mind of the decision maker.
My officials can expand on this; the criteria and process for making decisions on humanitarian and compassionate applications is extraordinarily complex. There is a decision makers' manual of over 100 pages. By removing sections 96 and 97 criteria, it will simplify the process somewhat and make it more efficient by removing redundant criteria.
We also propose, in the associated reforms, to move the pre-removal risk assessment decision for failed claimants — which will only be available to them after the one-year bar — if they have managed to stay in Canada for over a year following their initial rejection — from my ministry, CIC, to the IRB. We want to develop a centre of expertise in risk assessment at the IRB, which is why we want to move the legal obligation to assess risk from CIC to the IRB. I know this is very technical stuff. My officials can expound upon this, but we are confident that this will not undermine our obligations under the Charter and the European Union Convention on Refugees.
Bona fide refugees will get protection and additional procedural fairness. The hardship criteria under the H and C process will allow us to address exceptional situations which do not quite meet the bar — such as torture or threat to life — but it may deal with other circumstances at the edges, such as extreme medical situations or family ties.
Senator Jaffer: Minister, I also want to congratulate you for the exceptional work you did on resolving these issues and coming up with a bill that will be credible.
I am also extremely happy that you are looking at bringing refugees from abroad — increasing the number by 20 per cent. I understand at this time we have 12,000 people coming under this category. Do you have a specific number in mind?
Also, I do not know what has happened to the Women at Risk Program. How will the Women at Risk Program fit in? It may not be in place at the moment, but will there be special effort made to bring women who are widowed or in vulnerable situations?
Mr. Kenney: First, on average for the past decade, we have accepted roughly 10,000 resettled refugees, about three quarters of whom were government-assisted refugees identified by the United Nations High Commissioner on Refugees, whose resettlement to Canada the federal government facilitated and who have benefited from the Refugee Assistance Program. One quarter of the average 10,000 intake of resettled refugees has been through the privately sponsored refugee program.
The maximum number of resettled refugees in our annual immigration plan for the past several years has been 12,000. We are moving just beyond that cap this year, in part because of my announcement of our special program for Iraqi refugees who have had to flee the violence in their country of origin. We are anticipating about 12,000 resettled refugees this year.
Under these reforms, we propose about a 20 per cent increase in the target number of resettled refugees, to 2,500. The 2,500 increment would be broken down between 2,000 additional privately sponsored refugees and 500 government- assisted refugees.
We believe there is tremendous capacity in civil society to help resettle people. When we talk about the privately sponsored refugee program, people should think of the resettlement of the Vietnamese boat people in 1979. It was the genesis of this very successful program, which provides a wonderful, welcoming community environment for these refugees rather than just being anonymous clients of the government.
I am a big fan and admirer of the privately sponsored program. That is why we are responding positively to the longstanding calls of the sponsorship agreement holders in the PSR program to increase the targets. It will be 2,500.
Also, as an associated change, we will be increasing — by 20 per cent or $9 million — the budget for the Refugee Assistance Program, which has been frozen for 10 years. The budget will increase from $45 million to $54 million a year.
In terms of the Women at Risk Program, I am not entirely clear on what you are referring to. Perhaps you are alluding to the fact that several years ago, the Federal Court mandated that the IRB take into consideration cases of women who are victims of domestic abuse and who do not benefit from state protection. That would continue to be the case under the proposed reforms. We do not propose to narrow the scope of the grounds upon which an asylum claim can be filed.
If you are talking about something else and I am wrong on that, please clarify.
Senator Jaffer: I was talking about a program — perhaps it does not exist anymore — under which you helped people resettle in our country, especially through private sponsorship, where five people or families would get together to bring people over.
Mr. Kenney: There is still the Group of Five Program, which is a subcategory of the privately sponsored refugee program. It is a flexible tool, and it can certainly be addressed to women who are at risk. Maybe my officials could respond if they are aware of something I am not, in terms of historical precedent.
Senator Jaffer: I will ask them for clarification.
May I urge you, with regard to the increase, these additional people you are looking at, to specifically look at women who are particularly at risk. In the same vein, you have played quite a leadership role generally, and I would ask that you continue to play a leadership role with regard to gender guidelines.
I would like to hear from you with regard to designated countries with issues of family, female genital mutilation, honour killings, et cetera. How will those people be treated?
I was pleased to read in your remarks about vulnerable people being treated separately. I ask that you take that leadership role, especially with women who are facing these special challenges when they come to our country.
Mr. Kenney: I would answer by pointing out that the IRB has the flexibility to take into account individual circumstances. Again, if they face a client who has been a victim of rape, for example, who is clearly traumatized and not in a condition where they can either provide evidence or testify at the RPD hearing, the IRB decision maker would have the flexibility under their rules to grant an adjournment and delay the hearing.
I know that the IRB has worked with stakeholder groups to train decision makers to be sensitive to the emotional trauma faced by rape victims, for example. They do a very good job of that; I think that is one of the reasons why the United Nations High Commissioner on Refugees has strongly applauded the high-quality decision making process at the IRB, which we believe will continue under the reform system.
In terms of other gender issues, if you have specific ideas, we are certainly keen to hear them.
I can tell you also, in a slightly related field, I am aware that the IRB has recently led a series of training sessions for many of their decision makers on the particular nuances and issues related to claims grounded on sexual orientation. That was an issue that Egale, the gay and lesbian rights organization, raised with me. I passed it on to the chairman and I believe they have just wrapped up a session of training sessions precisely on the nature of those claims.
The Chair: The minister mentioned the officials with regard to one of the questions. Do officials have a quick response?
John Butt, Manager, Program Development, Citizenship and Immigration Canada: Quickly, there has always been a program of assessing the needs of women in particularly vulnerable situations. An element of the overseas selection is the capacity of the person to successfully establish at some level in Canada, and not at the level of economic immigrants, undoubtedly.
One of the things we recognize is that women do have skills and abilities that do not show up in academic documentation and work histories that enable them to survive in those camp situations, and those skills and abilities can be transferred to the Canadian resettlement scenario. There are programs that look at women in particularly vulnerable situations and take into account those inherent skills that they bring with them when they are resettled to Canada.
Senator Martin: Minister, thank you very much for the leadership you have shown and the work you have done with this bill. I can only imagine the complexity of the process to achieve to this point.
I also want to acknowledge the officials who are here. I know it is truly a team effort, so thank you, again, for your work.
Senator Jaffer has left, but I wanted to commend her on her advocacy for women and human rights. She does work extremely hard on those issues. I want to add that I had an opportunity to meet with the EVA, Ending Violence Association of B.C., and they were also commending you on your work in refugee reform. Training sessions will be quite important, especially in the interviewing process, to understand the cultural differences, the sensitivities, as well as some of the other insights that are needed by these interviewers.
Regarding the interview process, the face-to-face interview versus the paper form, would you comment on the effectiveness of that proposal and what you anticipate that particular change will bring?
Mr. Kenney: Currently, someone making an asylum claim at the port of entry, let us say Vancouver airport, is taken into an interview room immediately after they express their intention to file a claim. They will give an initial interview to a member of the Canada Border Services Agency, which is part of an eligibility review to see whether or not someone is eligible to make a claim; that is to say, did they make a claim before in Canada that was rejected, do they have a serious criminal past and are therefore inadmissible to Canada, therefore ineligible to make a claim. They also get what we call the tombstone data, the basic personal data that goes into case notes and kept on file. Then they are given a personal information form to fill out. They have 28 days to do so and to submit it. Very often those forms are actually filled out by legal counsel or consultants who are paid by the claimants in some cases, or by legal aid.
We are proposing to replace that process with an interview with a highly trained officer of the IRB who will be able to take that basic information and listen to the person's basic story about the nature of their claim. No key decisions will be made at that point. The key thing is that the initial interview officer will help the claimant to then schedule their RPD hearing, their initial hearing. However, we believe that this will be much more helpful to the client, rather than just giving them a form that they then take to their lawyer, it will actually allow the claimant to tell their story in their own words.
We believe this will also improve, frankly, program integrity. Right now it is well known that in many cases lawyers or consultants will fill out the forms not on the basis of what the claimant actually went through or what their story is, but on the basis of what the consultant thinks are the most likely grounds to get a positive decision from the IRB. Our interest here is in getting the truth and getting it in a direct way.
Counsel can be present. That is very clear in the amended bill. Counsel can attend the triage interview with the claimant and they can intervene on procedural issues, on questions that go back and forth. This will be a non-confrontational interview. It is not hostile. It is not a hearing. It is not a decision-making process. It is just the initial opportunity for the claimant to give their story, which will help to accelerate the whole process. That is part of what allows us to schedule the RPD hearings three to four months after the claim is made, as opposed to the current 19 months or 20 months.
If I could, Mr. Chairman, just pick up on something Senator Martin mentioned. I should have done this in my remarks and I have not yet publicly, but I want to thank my officials from CIC for their diligent work on this, and of course the witnesses who are before you, but this is an issue that CIC has been working on for years. I would like in particular to thank Peter McDougall, who is the Director of the Refugee Policy Division, his whole team, and indeed his predecessor, Micheline Aucoin. These people have spent hundreds of hours on this extraordinarily complicated legislative reform.
Senator Ogilvie: Minister, I have some observations to pass on to you. First, I want to congratulate you for leading this reform, with the unanimous support of your colleagues in the house.
It is my view that this brings about change that has long been recognized as needed by Canadians in general, and it brings about a process and language that reflects Canadians' values of fairness, as well as effective implementation of fair procedures. In that regard, my reading is that it has the potential to bring much more effective and timely decision making to what has to be one of life's most important decisions.
At the same time, it reduces significantly, if effectively implemented, the broad opportunities for fraud that existed in previous situations; again, a great concern to Canadians in general.
Finally, I want to follow up on your last remarks to thank you and your officials for the very clear and well- organized briefing materials on what could be a very complex document. I would conclude by saying that if effectively implemented I believe that this will be really valued by Canadians and bring real benefit to those who genuinely should have the opportunity to reside ultimately, in Canada, and I want to thank you for that.
Mr. Kenney: Thank you, and I will certainly reiterate those comments to our officials. I have to say the initial briefings they gave me were not as simple as this. I think the initial briefing was 17 memos that ran 140 pages, and that was the high- level summary.
Senator Eaton: Minister, what kind of additional resources are you giving the whole process to really make this work?
Mr. Kenney: That is a very good question. The main efficiency gain is that new claimants who arrive after the new system is put in place will not have to wait at the back of the 60,000-person queue. If you go into the back of that queue, it takes 19 months to 20 months before you even get that initial hearing. We have to choose a point at which to start the new system. When we pull the trigger on the new system, a claimant who arrives that day will benefit from the expedited timelines. We remove 19 months right there.
I wish to express my gratitude to the Minister of Finance and cabinet colleagues for furnishing us with a $540- million investment during a time of fiscal restraint. We are probably the only developed country in the world that is investing more rather than less in its refugee program. Those additional resources are essential to streamline the system by hiring more decision makers, creating the triage interview at the front end of the system, and, most important, hiring additional removals officers at the CBSA for faster removal at the back end of the system. Even the most enthusiastic refugee advocates have complained about the inefficiency of our removals process. It now takes sometimes two years, if not longer, to remove a failed asylum claimant. That will be significantly sped up as a result of the additional investment at the CBSA.
When someone steps off a plane from Iran, where it is clear that they were a victim of torture, we give them a form and tell them that we will check back with them in 18 or 19 months. Instead, bona fide claimants would, under the new system, have the certainty of Canada's protection in a little more than three months. A manifestly false claimant can now go four and a half years, on average, before they have run through all of the recourses in our system, and then it takes time to remove them. Under the new system, if they are coming into the fast track from a designated safe country or as a manifestly unfounded claimant, they would run through all of the recourses in about four months and would be subject to removal after that. We are going from 20 months to 4 months for a bona fide claimant to get protection and from four, five or six years to five or six months for a manifestly false claimant to be removed.
Senator Eaton: Do you have all the resources you need to do that?
Mr. Kenney: Yes. We could always use more, but we understand that this is a time of fiscal restraint, so we are not asking for any more.
Senator Cordy: Minister, you have to be the first minister who has ever said they have enough resources. You will live to rue the day you said that.
I would like to thank you and Maurizio Bevilacqua for the work you have done and the cooperation you have shown. When you work together like that on the House of Commons side, it makes our job in the Senate much easier, because we know that you have done a thorough job with the bill.
Dealing with immigration and refugees issues is always challenging. You talked about the balancing act that we need. We want to provide a safe haven in our wonderful country for those who need one, but on the other hand we do not want people coming in the back door who are not legitimate refugees.
There is some concern that the new rules may require appeals to be filed too quickly, that people may not have time to get counsel. I understand that the time frames are not in the legislation but will likely be in regulations. The Federal Court allots 15 days to the appeal and a further 30 days to file the appeal itself. Are those the guidelines? We do not want the appeal time dragging on forever, but we do want enough time for those filing an appeal to get their case in order.
Mr. Kenney: No, we will not be using the Federal Court guidelines, because the IRB has its own guidelines. Those will be modified to reflect the timelines that we are calling for in the new system. A claimant who is rejected by the refugee protection division has a 15-day period in which to indicate their intention to file an appeal to the Refugee Appeal Division. Most claimants would then have four months before their appeal is reviewed. Fast-track claimants, that is, clearly fraudulent claimants or those coming from safe countries, would have their appeal heard within about 30 days.
We think that is very generous. Most other Western democracies do not even grant an appeal. We do not have one now in Canada, and the timelines we are proposing, particularly on the fast track, are much slower than most of our peer democracies. I understand the concern but, frankly, if the Canadian Bar Association was wholeheartedly endorsing this package, I would not be supporting it.
The Chair: There is something to ponder.
Senator Seidman: Minister, I would reiterate what everyone has said here. We thank you for all your efforts and the leadership you have shown in making this bill a success in every way.
I have one question about the designated countries. Does the minister have the authority to designate any country he or she wishes?
Mr. Kenney: No, absolutely not. We have tabled draft regulations, which are available for your review, that make it clear, both in the bill and the draft regulations, that there will be an interdepartmental committee made up of relevant ministries and agencies. There will be a numerical criteria. Designated countries will be those that are responsible for at least 1 per cent of asylum claims filed in any one of the previous three years, with an acceptance rate of no more than 15 per cent. In other words, if the IRB is rejecting 85 or 90 per cent of the claims from that country, that would be the numerical threshold. To repeat, an 85 per cent rejection rate and 1 per cent of claims filed is the quantitative threshold that would trigger a review by the interdepartmental committee, which would then do a qualitative review. Does that country respect human rights? Are they a signatory to the major human rights instruments? Do they provide protection to their citizens?
There would be two independent human rights organizations on that panel. The panel would also confer with the United Nations High Commissioner on Refugees. This is by far the most rigorous procedure in the democratic world of which I am aware for a designation process.
That committee would then make recommendations to the minister. The minister could not designate countries for fast- track treatment that were not recommended to him by the panel. That is to say, only those countries recommended to the minister that meet the qualitative thresholds, where there is a positive assessment that they respect rights and protect their citizens, could be designated. The minister cannot just say, "I like country X; I will designate it for fast-track treatment." There is no such discretion.
Senator Plett: Minister, in your remarks you said there would be $1.8 billion in savings over five years for taxpayers, and provinces in particular. Are the provinces on side?
We heard this morning that the Bloc brought forward an amendment changing a term from "safe countries" to "designated countries." What was their reason for that?
Mr. Kenney: The provinces are generally supportive. They have not issued press releases saying so, but I can tell you that Quebec in particular has raised with us the problem they are facing with the welfare and other costs associated with false refugee claimants. The provinces have good reason to be pleased with the package.
In terms of that amendment, the bill that I tabled at first reading did not include the word "safe." It was added in a proposed amendment as a result of negotiations I had with my Liberal critic. As you may know, the Liberal Party then decided they would not support the bill, even based on the amendments they had negotiated with us. I then had to turn to my colleagues in the Bloc Québécois and NDP, and they said they wanted the word removed because they thought it might create an incentive for foreign governments to lobby us for the safe designation. They wanted to ensure that politics did not play a role in the designation process. I said, frankly, we could have it either way, and it makes no difference.
The Chair: I have one other point on the personal information form that would be replaced by the interview. Some people have said that the personal information form gives an applicant time to think out what they want to say, and they may even have their lawyer involved, as opposed to the interview which relies on the interpretation of the person interviewing them. What is your response to that concern?
Mr. Kenney: Again, legal counsel will be able to attend the preliminary interview with the claimant, and they will be able to assist on legal issues that occur there, but it is not a hearing. A decision is not taken there. I think some of the lawyers misunderstand the process. They think it is an additional hearing or decision-making step in the process, and that is not accurate. Right now, there is an interview with the CBSA officer, minutes after the initial claim is made at a port of entry, with a law enforcement officer where there is typically no legal counsel present.
I think the objection is unreasonable. We believe that listening to the client, giving them to the opportunity to tell us their story, is to their advantage. Again, this does not inhibit in any way their ability to present new or different evidence when they get to the real hearing at the Refugee Protection Division, at which typically counsel will be present.
The Chair: Minister, I thank you for spending this hour with us. I thank your officials for attending. They did not have much to say, which is a credit to how well you know your portfolio.
Mr. Kenney: Thank you, honourable senators, for your serious consideration of this bill.
The Chair: To the officials at the end of the table, we may have questions that arise as a result of the people we will hear later in the day. We plan on finishing the witness hearings at six o'clock and then go to clause-by-clause review. We may have questions for officials at that point. If you or others replacing you could be here to answer questions, we would appreciate it.
We will now hear from the Immigration and Refugee Board of Canada. Simon Coakeley is the Executive Director, and Sylvia Cox-Duquette is Senior General Counsel, Legal Services for the IRB. Mr. Coakeley, do you have some opening comments?
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Simon Coakeley, Executive Director, Immigration and Refugee Board of Canada: Mr. Chair, thank you for inviting me to speak with you today. I am the Executive Director of the Immigration and Refugee Board. I am here today with Sylvia Cox-Duquette, the board's Senior General Counsel. Ms. Cox-Duquette and I both joined the board in 2008.
As Executive Director, I am the board's senior public servant and I report to the chairperson. I am the chief operating officer and I am responsible for the performance of the board's adjudicative support and corporate services functions.
The IRB is Canada's largest independent administrative tribunal. It reports to Parliament through the Minister of Citizenship, Immigration and Multiculturalism, but remains independent from CIC. Our mission under the Immigration and Refugee Protection Act (IRPA) is to resolve immigration and refugee cases efficiently, fairly, and in accordance with the law.
IRB members make anywhere from 40,000 to 60,000 decisions annually. We currently fulfil our functions through three divisions: the Immigration Division, the Immigration Appeal Division and the Refugee Protection Division. Bill C-11 will add a new Refugee Appeal Division.
Since its inception 21 years ago, the IRB has gained a reputation — both in Canada and around the world — for its innovative practices, the excellence of its adjudicative support and the high quality of its decisions. The board is funded to finalize 25,000 refugee claims a year. However, the number of claims referred to the board has consistently exceeded our funded rate for the past several years.
This high intake of refugee claims and a shortfall in the member complement over the same period have resulted in a large backlog in the Refugee Protection Division, which sat at 57,100 at the end of May 2010. The board will require additional resources to substantially reduce or eliminate this backlog.
Now I would like to speak specifically about some aspects of the proposed new system that will change the way we conduct refugee determination at the IRB. First, I would like to stress that the IRB has no role to play in policy- making; this is the responsibility of Citizenship and Immigration Canada. But I can assure you that we have been consulted appropriately during the drafting of this legislation, on all aspects that affect the mandate of the IRB.
In the new system, an IRB employee will conduct an information-gathering interview normally no earlier than 15 days following referral by CBSA or CIC. At this interview, information will be collected, an overview of the process will be provided to the claimant, and a hearing scheduled before the Refugee Protection Division.
Under Bill C-11, the RPD hearing will be conducted by a public servant appointed pursuant to the Public Service Employment Act rather than a GIC, as is currently the case.
The government has indicated that timelines for both the RPD and the RAD would be set out in Regulations. Any claimant whose refugee claim is rejected by the RPD would have a right of appeal on the merits to a new IRB Refugee Appeal Division (RAD) staffed by Governor-in-Council appointees.
The Minister of CIC would also be able to appeal RPD decisions to the new RAD. The RAD will be able to receive new evidence and, in certain circumstances, could hold an oral hearing.
The RAD will be able to confirm the RPD decision, overturn it and substitute its own decision or, in rare cases, return the matter to the RPD for a new hearing. Unsuccessful applicants and the Minister will also have the right to seek leave for judicial review before the Federal Court. We understand that most of the timeframes for the RPD and RAD processes will be set out in the regulations.
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The minister has also proposed an amendment that would see the transfer of the pre-removal risk assessment, or PRA, function to the IRB one year following the coming into force of the new system. However, the minister would retain authority for prior decisions relating to persons who have been found to be inadmissible for serious criminality, organized criminality, war crimes or national security. These are sometimes referred to as "balancing cases."
Another amendment gives RPD decision makers the authority to make determinations that claims are manifestly unfounded if they are of the opinion that a claim is clearly fraudulent. In such cases, the claim will be subject to the same expedited processing at the Refugee Appeal Division as claims arising from countries of origin designated by the minister.
Public servant decision makers for the new Refugee Protection Division and the Governor-in-Council decision makers for the RAD, or Refugee Appeal Division, will continue to be selected through staffing processes which ensure they are suitable and qualified. While we still have a lot of work to do before we launch these processes, we are confident we will able to select highly qualified candidates, just as we currently do.
Once hired, an extensive training program will be provided to all decision makers to ensure the same high quality decision making as exists now. The IRB training program is already recognized internationally, and by the Federal Court of Canada and the Auditor General, for its thoroughness and professionalism. The new RPD public servant decision makers, as well as members of the new RAD, will be subject to the same code of conduct that establishes the standards that govern the professional and ethical responsibilities that apply to our current Governor-in-Council and public servant decision makers.
Since Bill C-11 was introduced at the end of March, internally, we have started to map out the new processes that will need to be put in place in both the RPD and the RAD. However, the real work to prepare for implementation can only get under way once Bill C-11 receives Royal Assent and transition funding is released. At that point, we will develop rules, finalize work descriptions and accountability profiles for all the new positions to be created, launch staffing processes, secure office space and so on.
I would like to touch briefly on the rule making process that I have mentioned. Rules are a type of binding policy articulated by the board. We will develope rules to establish the procedures that must be followed in the Refugee Protection Division and the Refugee Appeal Division. For example, the rules will establish such details as how and when documents are provided by the claimant to the IRB and the minister, and vice versa; and the roles and responsibilities of the IRB personnel supporting the adjudicative functions.
The process for developing the rules includes meaningful consultation with stakeholders and parties appearing before the IRB before the draft rules reach the stage of publication in the Canada Gazette. We will be calling on our stakeholders and asking them to help us effectively structure our new processes. In fact, we already started engaging stakeholders at our consultative committee on practices and procedures' meeting held in Ottawa last week.
The IRB remains steadfast in its commitment to high quality decision making and will continue to maintain the high standards we have set for ourselves. Our thoughts are never far from the people whose lives depend on the decisions we make, as well as the safety and security of Canadians.
As our chairperson, Mr. Goodman, indicated in his appearance before the House of Commons Standing Committee on Citizenship and Immigration, the IRB will deliver, to the best of its ability, on the requirements of the legislation as determined by Parliament. We will do so within the time frames given and within the budget allotted, fulfilling our mandate to resolve cases efficiently, fairly and in accordance with the law. Now I would be pleased to answer any questions you may have.
The Chair: You have a backlog. You have talked about the volume that you do now and the volume you can do in future. How will you get rid of that backlog? Also, how much in additional resources will you require — either as a percentage of the budget or as a dollar figure?
Mr. Coakeley: We have already made a certain amount of progress on reducing our backlog. In the last few months, we have reduced it by about 4,000 cases. What we will be able to do in the next 12 to 18 months will depend largely on the number of cases we receive.
As I indicated, we are currently funded for 25,000 claims per year. If we receive less than that, it gives us room to start eating into the backlog. In the last six to eight months, with some efficiencies and the fact that we now have a full complement of decision makers for the first time in a long time, we have been able to exceed our decision making capacity. Over the last year, for a 12-month period, we probably have been able to do about 28,500 claims.
We expect to continue to be able to do that before the bill comes into force. As I believe the minister did indicate, there is money in the overall package for backlog reduction; that will depend on when the bill receives Royal Assent and when the coming into force will take place.
We are in discussions with Citizenship and Immigration around the timing of those events, and the calculations that it follows because of the new process. If we receive money under the current process, we would be able to do a certain amount of cases; if we receive money under the new process, we will have to reassess because the new process is more fulsome in the sense we have an appeal division we do not currently have. We are still working with our colleagues at CIC to come up with an answer to that question.
The Chair: You do not have a dollar figure.
Mr. Coakeley: Not at this point.
The Chair: On the pre-removal risk assessment, there is a provision in this bill that says that persons subject to removal order may not apply for this pre-removal risk assessment if their claim for refugee protection was rejected, abandoned or withdrawn within the last 12 months.
There are circumstances where things can change in countries — revolution, changes in government, et cetera. Suddenly there could be changes in policies that a government may have with respect to minorities, people who could be persecuted. How is that covered in this bill?
Mr. Coakeley: Some of that question would be better placed with the minister. As an administrative tribunal, our role is to decide the cases that are referred to us. In the past, stakeholders have consistently suggested they would feel more comfortable with the decisions about risk being taken at the Refugee Protection Division, which is proposed in the bill.
As for the policy decision as to which cases should be referred to us and at what point, that is outside our mandate, I am afraid.
Senator Jaffer: I have a question on gender guidelines. You spoke about training on sexual orientation. Perhaps the minister said that.
Mr. Coakeley: Yes, it was the minister.
Senator Jaffer: What kind of training you are doing and are you continuing, as in the past, to make sexual orientation part of the refugee definition?
Mr. Coakeley: In a general sense, we very much intend that the new public service decision makers at the new RPD, members at the RAD and our interviewers will all receive very similar training. We have not figured out what the final package is, but it would be very similar training to what is currently provided to all our decision makers. That would include things like the gender guidelines and sexual orientation.
I will ask my colleague, Ms. Cox-Duquette, to speak to the specific issue as to the training provided on gender guidelines.
Sylvia Cox-Duquette, Senior General Counsel, Legal Services, Immigration and Refugee Board of Canada: We have general training on the gender guidelines themselves, but sometimes we will have specific training in relation to a particular country. For example, recently we gave training on gender guidelines in the context of Haitian refugee claims.
Together with the guidelines to deal with vulnerable claimants, there is considerable training on gender guidelines. There is considerable attention paid to the particular situation of women as a social group in many parts of the world, and the possibility of persecution and lack of state protection.
Senator Jaffer: The gender guidelines were drafted a number of years ago. Will they be updated or are they still sufficient?
Ms. Cox-Duquette: I do not know of any plans to update the gender guidelines, but guidelines are something that we do look at on a frequent basis to determine if something must be added or changed.
Mr. Coakeley: That is something that is often identified in consultation with our stakeholders. For example, the stakeholder community has identified to us recently that they feel there are some issues with our designated representative guideline, so we are working with them now to address those issues and see what changes if any need to be made. If the stakeholder community identified an issue with the gender guidelines, we would work in cooperation with them.
Senator Jaffer: The concern that I have is with the personal information form. I was a refugee lawyer for many years, and I do not know how, in a short time, your officials will be able to get all the information and process it. It will be a work in progress to see how it will work.
Mr. Coakeley: It will definitely be a work in progress. We see this initial interview as being a two-way exchange of information. Part of it is an opportunity, as the minister indicated, for us to obtain information from the refugee claimant. It is also an opportunity for us to provide information to the refugee claimant. If the individual, for example, is a vulnerable person, it will allow us to identify that much sooner in the process and take the steps we need to accommodate that. We have not yet worked out the exact questions that we will be asking, and we hope to be able to engage our stakeholder community in developing that process.
Senator Jaffer: You will not be using be the PIF?
Mr. Coakeley: We do not see a role for the PIF in the new system.
Senator Cordy: After Royal Assent of this bill, assuming it will go through, we will have a new refugee appeal division. These will be Governor-in-Council appointments. What kinds of qualifications will the government be looking for when they make these Governor-in-Council appointments?
Mr. Coakeley: If you would like to check our website, you can find some information about the fairly extensive process we have for selecting Governor-in-Council appointees. We obviously would need to look at that as we go forward to ensure it meets the new needs. However, at the moment, we make the selection on the basis of 10 competencies. These are communication, conceptual thinking, decision making, information seeking, judgment and analytical thinking, organizational skills, results orientation, self-control and cultural sensitivity. We foresee these same 10 competencies we currently use for the Refugee Protection Division and the Immigration Appeal Division in all likelihood would be used for the Refugee Appeal Division in the future, and also in all likelihood will be similar to the ones we would be using for the new Refugee Protection Division. If the committee would like, we could provide the definition of those competencies and where they can found to the committee clerk.
Senator Cordy: I would appreciate that. Currently, we have the Immigration Refugee Board. Are there any openings currently?
Mr. Coakeley: Out of the 127 positions on the Refugee Protection Division, I believe we have one or maybe two vacancies at the moment. Out of the 37 positions on the Immigration Appeal Division, I believe again we are at one or two.
Ms. Cox-Duquette: We are very close to 100 per cent.
Senator Seidman: There has been a lot of discussion about this change from the PIF to the face-to-face interview, which is much earlier on. You will obviously have to hire and train people to perform these activities. I would like to hear something about that procedure, the kind of people you will look for and how you will train them.
Mr. Coakeley: We still have a lot of work to get those processes up and running. We cannot finalize work descriptions and classification issues within the public service until the bill has been passed and we know exactly what we are working with. However, we do, as I indicated to Senator Cordy, have this Governor-in-Council competency profile that we use at the moment. We intend to be guided by that for the new Refugee Protection Division members. We will look at exactly the same competencies to see what extent they would also be applicable in the context of the interview.
For example, the one on cultural sensitivity would definitely be one we would want to include, as well as the ability to communicate. We would see ourselves using a similar approach, although recognizing that in all likelihood the classification of the interviewer position will be a few degrees lower than the decision makers in terms of the public service process. We would see ourselves using similar competencies and selection processes. The interviewing skill and the extent to which we are asking an interviewer to capture information, either on a computer screen or in notes, will have to be factored in.
We would expect to provide very similar training, not identical because they are conducting an interview, not a hearing, but similar training to our interviewers as will be received by the Refugee Protection Division members. Again, the interviewers are not decision-makers, but they need to understand refugee protection and the grounds for refugee protection. They need to understand many of the latest cases from the Supreme and Federal Courts, as would our decision makers.
Again, I do not have all the details because it is for us early days, but that is the broad framework that we are expecting to use.
Senator Seidman: Would these people be under some kind of supervision?
Mr. Coakeley: Indeed. Since they are public servants, there will be a management structure that sits on top of them. We still have not decided exactly what the organizational structure will be, but there will be a management structure.
You might be interested in knowing that our chair has made a commitment to the stakeholder community that we will provide a recording of the interview to the claimant so that he or she can provide that to his or her counsel. This also will allow us from a management point of view the opportunity to listen in on the interviews as part of the performance review process to ensure that the right questions are being asked and the right attitude is being displayed and that the people are doing the job we expect them to do.
Senator Seidman: Thank you especially for that last piece of information, which I think is remarkable built-in quality protection.
The Chair: I thank you and wish you well in your implementation of this new legislation, assuming it passes the Senate, of course.
Our next witnesses are representatives from the Office of the United Nations High Commissioner for Refugees. As honourable senators know, in 1951, Canada became a signatory to the United Nations Convention Relating to the Status of Refugees, and this organization is helping to monitor how we are doing in that regard. It has been monitoring this bill and has also spoken to it before the committee of the House of Commons. We now have some revisions to it, so it will be interesting to hear what they have to say at this point in time.
Hy Shelow, Senior Protection Officer, and Michael Casasola, Resettlement Officer, are here. Mr. Shelow will speak for up to seven minutes.
Hy Shelow, Senior Protection Officer, Office of the United Nations High Commissioner for Refugees: Mr. Chairman, thank you for inviting us here today. The UNHCR representative in Canada, Mr. Abraham Abraham, regrets not attending today. He is in Geneva. On his behalf, let me thank you for inviting us to appear.
I will start by saying that UNHCR is pleased with the bill as amended.
In view of the nature of the risks involved and the grave consequences of an erroneous determination, it is essential that asylum seekers be afforded full procedural safeguards and guarantees at all stages of refugee status procedures. The necessity to provide fair and efficient refugee status determination procedures in the context of individual asylum systems stems from the right to seek and enjoy asylum as guaranteed under article 14 of the Universal Declaration of Human Rights and responsibilities derived from the 1951 convention relating to the status of refugees and its 1967 protocol, international and regional human rights instruments, as well as relevant executive committee conclusions.
Currently made up of 78 members, the UNHCR governing executive committee meets in Geneva annually to advise UNHCR on international protection and discuss a wide range of other issues. The program of action for the implementation of the agenda for protection adopted by UNHCR's executive committee in 2002 affirms that states are to grant access to asylum procedures and to ensure that their asylum systems provide for efficient and fair decision making.
Numerous conclusions of the executive committee examine topics relevant to this bill. Canada, as an active contributor informing the work of the executive committee, has been closely engaged in the development and review of international norms and best practices with regard to refugee status determination. My statements today, therefore, echo positions taken internationally by Canada, as reflected in the UNHCR executive committee conclusions supported by Canada and promoted by Canada internationally.
The Canadian refugee status determination procedure is one of the very few that UNHCR holds up as an example to other countries. In fact, there is no other system, as a whole, that we point to as being exemplary. It has a lot going for it. While the Canadian refugee status determination system does have a number of challenges, including the significant backlog of claims pending determination that need to be addressed, let me say that the core remains solid and an excellent example for other countries to emulate. UNHCR hopes to be able to continue to refer to Canada as a bastion of refugee protection, including with regard to your refugee status determination system.
UNHCR has been closely cooperating with Canada for six decades. For three of these, we have directly supported your authorities and their implementation of the refugee convention through our office presence here. UNHCR looks forward to continuing to work closely with Canadian authorities on the reforms planned for Canada's asylum system, including with regard to development of regulations and other areas of engagement.
I would like to shortly review a few issues relating to recent amendments to the bill.
UNHCR is particularly pleased that a full first instance hearing is preserved in the amended bill and at the Refugee Appeal Division, or RAD, an appeal on the merits is available to all claimants who receive a negative first instance decision. This accords with international standards regarding refugee status determination procedures.
Regarding timelines set out in the amended bill, UNHCR supports full, fair and efficient process and notes that many asylum seekers in Canada have had to wait substantial periods to receive decisions regarding their asylum claims, and this is a traumatic circumstance. Having noted this, getting the decision correct is at the core of process, and overly ambitious and rigid timelines can result in hasty decision-making. Sufficient time to prepare, submit a well-articulated claim, and take a decision are important. Pressure is placed on refugee claimants and decision makers regarding outcomes by inflexible demands for speed. In some circumstances, asylum seekers may not be able to effectively articulate their claims at an early stage, for example, due to traumatizing experiences which are difficult to describe soon after events due to the impact of torture, witnessing or experiencing atrocities or other negative impact on physical or mental state.
Regarding the one-year interval after a negative decision by the RAD during which a failed refugee claimant is precluded from access to review procedures and during which time they are considered "removal ready" for removal from Canada, UNHCR agrees that those who are not in need of protection may be returned to their country of origin. However, there is the issue of refugee sur place, whereby changes in circumstances in a country of origin while the individual has been away from home result in a well-founded fear of persecution and a well-founded claim for asylum where none was appropriate before, such as fundamental changes in the political situation in a country. Beyond exempting countries to where removal is not acceptable due to generalized violence or sweeping human rights violations, there is a "not infrequent" change with regard to an individual's own circumstances vis-à-vis their country due to political opinions, religion or ethnicity.
Regarding the transition period pending the amended bill becoming law and entering into force, a concern would be if, for example, the bar on access to the pre-removal risk assessment is enforced sooner than the availability of review of negative decisions by the RAD. Of concern is the backlog of tens of thousands of cases pending determination by the IRB and how this could negatively impact the introduction of new procedures.
Processing resources that are meaningful and sufficient to avoid overwhelming the new procedure are necessary. Further, regarding processing resources, including staff, UNHCR is pleased to note that substantial resources are to be devoted to this new procedure. This is a clear commitment to uphold international obligations. UNHCR remains ready to assist with the capacitation of decision makers and other newly hired staff.
Last, the details are key, and we look forward to consulting when the full set of regulations and their contents become available.
The Chair: We may have a shortage of questions because you said you were pleased with the amended bill, and you have been complimentary of how Canada deals with refugee claimants and asylum seekers.
When you get into political trade-offs and the kind of discussions that went on over in the House of Commons committee, combined with a fairly rushed timeframe, you sometimes get unintended consequences. Do you see any unintended consequences in this amended bill?
You said something a moment ago about details. We all see the good intentions here. We have heard from the minister and understand fully his good intentions in regard to this legislation. As the old saying goes, sometimes the devil is in the details. Are there any particular details we need to watch out for to ensure that the direction the minister talked about this morning is upheld? Unintended consequences, good intentions and the details, those are the elements of my question to you.
Mr. Shelow: First, I should start by saying that UNHCR is a UN humanitarian organization and apolitical by definition. However, we face a politicized environment wherever we work. My comments will be looking at an individual rights-based approach as opposed to some of those trade-offs you may be talking about.
When we look at human rights, the clear and key human right associated with the refugee convention is the concept of non-refoulement, or non-return, of an individual to a place where their life or freedom would be at risk. When we look at potential unintended consequences, any consequence that would increase the likelihood that that might occur would be of concern to us. To see what potential unintended consequences there are, we would have to examine the regulations that would be put in place in association with the legislation.
Clearly, any return of an individual to a place where they are in danger would be a serious concern, and any legislation that would make that more likely would be a serious concern as well.
One discussion that appears to be ongoing relates to timelines. I mentioned earlier that when you have strict and inflexible timelines, both decision makers and claimants are put under greater pressure to meet them, especially in situations where individuals are unrepresented or may have linguistic challenges because they do not speak English or French and are in a country where that is expected in terms of process. These are things that need to be taken into account.
The Chair: I asked the minister about designated countries, particularly concerning gender and gay-lesbian issues in countries where there is persecution, not necessarily by the government or government agencies, but perhaps in the family or the community. We all know those things occur.
In most of the countries where they do occur, they would not get on the designated list with the criteria that the minister will follow, but there could always be some exception. I cited the case where the U.K. has a country on its list that in fact has a law against homosexuality. Are you satisfied with the way that has been responded to here?
Mr. Shelow: When UNHCR spoke to the issue of designated countries of origin in many different legal venues and in many countries worldwide, our examination of it was in terms of process. We are less concerned about that if it is intended to be a procedural tool that assists the examiner, for example, to expedite cases because background information is already clear and basically one is examining individual circumstances rather than country circumstances by virtue of having the country on the list.
Where using a country list as a bar to access to process occurs, that is a serious concern for us. I do not believe that is the intention of the legislation here in Canada, and I do not think that will result as an unintended consequence, if you will.
When we talk about designated countries, there are two issues. One relates to the individual, as you mentioned. For instance, the situation of homosexuality or female genital mutilation in countries that are otherwise considered democratic and that have acceded to human rights instruments, et cetera, is a concern.
Another concern that has occurred in other legislative milieu but not here, to our understanding, is an attempt to say that parts of a country may be safe when it comes to designation and looking at issues regarding the internal flight alternative. If the legislation here was looking at the possibility of designating a portion of a country as safe, that would be of concern; for instance, saying that Sudan was safe except in south Sudan, that sort of issue.
Senator Jaffer: I may be mistaken, but I understand that UNHCR will be one of the experts giving advice to the minister as to which countries should be designated. Is that in place? I understand that there will be outside experts — I do not know how else to put it — aside from the experts from the department. Could expand on that, please?
Mr. Shelow: UNHCR has been approached and we have had discussions. The reality is that I expect the final outcome to be somewhat similar to our current engagement with your officials with regard to the temporary suspension of removals. A list is created. As part of developing that list, we are requested to make submissions based on our opinion as to safety of the country, country of origin information and other matters. We are not involved in the actual decision as to which country should be placed on the list or not, nor would we be likely willing to do so in any other circumstance.
However, as a source of information, which I think is certainly well respected in Canada and which we appreciate, we are regularly consulted on these issues.
Senator Jaffer: Will you be on the panel or not? The reason I ask is that I am very much aware of your independent status, and you would never want to jeopardize it. From what I hear, you will provide advice but will not be on the panel; is that correct?
Mr. Shelow: That is my understanding as well; we would not actually sit on a panel with a decision-making authority as to which countries would appear on a national list.
Senator Jaffer: You touched on another issue with respect to bringing refugees from abroad. I know that UNHCR is very much involved with our government in selecting people who would come from abroad. As you know, the minister has said that there will be an increase of 20 per cent. I am anxious to hear from you. I think you and the minister alluded to the fact that resources will be available to help you do this. More particularly, I would like to hear from you as to how you will help the most vulnerable women in the camp. Is there a special program for that?
Mr. Shelow: I will ask our resettlement officer here in Canada to answer that question.
Michael Casasola, Resettlement Officer, Office of the United Nations High Commissioner for Refugees: Thank you for the question.
UNHCR was happy to hear that Canada, as part of the legislative package, is planning to increase its resettlement program.
Right now, UNHCR goes through a process internationally where, out of the refugees or persons of concern, we determine who is in need of resettlement. We currently estimate that resettlement would be appropriate for somewhere around 700,000 persons who have no other solution. Our challenge is that only about 70,000 to 80,000 resettlement spaces are available to us through countries like Canada, the United States, Australia and about 20 others. Canada is one of the leaders. I think it is the second-largest resettlement country internationally. We are grateful for the spaces, but we need more.
Inasmuch as one in ten refugees is in need of resettlement, we realize this is a multi-year program and that we will not get there right away.
Having said that, as part of the process of identifying which refugees are in need of resettlement, UNHCR uses a variety of tools. One thing we set as a benchmark for ourselves is in follow-up to an EXCOM conclusion relating to women and girls at risk. We are working toward 10 per cent of all our referrals for resettlement being related women at risk, which is not to say that all refugee women are women at risk, but there is a particular program for refugee women who are particularly more vulnerable. That is something we have achieved in some areas, but we have not done so internationally yet. We are still working toward that goal.
Senator Jaffer: Can you please provide us more detail about this program for women at risk? Also, while I am asking you the question, I understand that there are criteria as to how these people are selected. Sometimes women do not fit those criteria. As a committee, do we need to do more to advocate for these women so they can fit the criteria?
Mr. Casasola: When UNHCR identifies refugees in need of resettlement, it has eight criteria. Without getting overly technical, we are looking at those people who have the strongest protection need and those refugees who are among the most vulnerable.
Refugee women at risk would fit into both of those categories because they may be people who are in need of physical protection. When we look at our criteria, a refugee often meets more than one. A woman at risk may be in need of resettlement because she is a woman at risk, but also because she has a legal and physical protection need and because she has no other durable solution available to her.
It becomes a challenge for us in terms of developing identification tools. Women at risk are sometimes identified through other programs. When we use tools like group processing — and you may have heard about Canada's involvement with the Bhutanese in Nepal or with the Myanmar refugees in Thailand — we will often use the same kind of criteria like looking for women at risk, but we will not call them that and therefore do not capture that statistic. Our statistics in themselves are problematic. Our referrals are based entirely on need.
Canada has its own criteria, as do other resettlement countries. We always urge resettlement countries to mirror their programs as closely as possible. With the introduction of the Immigration and Refugee Protection Act, Canada introduced a number of changes to bring its program much more in line. Canada now has a number of tools that work well with us, such as its Urgent Protection Program to respond to UNHCR emergency referrals, but it has also diminished the importance of the ability to establish. For example, under the regulations, for refugees determined to be in urgent need of protection or to be vulnerable, that barrier no longer exists. That is less of a problem for us.
The top-shelf issue for us internationally is to find more resettlement space. That is why this announcement is good. We had been hoping Canada would increase its resettlement target, and we are hoping that will be a signal to other countries to increase their programs as well.
Senator Jaffer: Mr. Shelow, because I have a preoccupation with designated countries and sur place, I am glad you raised it. The nature of sur place being what it is, I would like you to expand on the notion of a refugee coming here from a designated country, one who for some reason needs safety. Have you had an opportunity to think about how this would work with designated countries? I am not concerned about the others.
Mr. Shelow: If we look at the current situation in Central Asia, in Kyrgyzstan, where an Uzbek minority has been living in relative harmony and peace for quite some time, there are now some 400,000 displaced people. If a claimant here in Canada made a claim that had been rejected one month ago, in the interim period, we have all seen on the news what has happened. If you are at a stage of final rejection, you are "removal ready." When looking at issues of sur place or at individuals in whose country of origin the situation has changed dramatically since that "final outcome," it would be important to determine what to do about those persons.
When you have temporary suspension of a removals list, for example, removals lists are useful and effective if they are dynamic; that is, if you are able to take countries off the list and put them on the list quickly. That is not necessarily the case. Every country has its own bureaucratic situation, and it takes time. Unfortunately, refugee emergencies are quite fast.
That is dealing with an overall situation. However, if you look at the situation in Kyrgyzstan today, beyond the Uzbek minority as a whole, there are individuals who may suffer targeted ill treatment as a result of harbouring an Uzbek neighbour, for example, who might otherwise not fit into the conception of a lot of legislation as to what is final. It is important to ensure that up to the time an individual is removed, there is the possibility that, if they will be in danger, this will be addressed. That is because of the core concern about non-refoulement, sending someone home to a place where they would be in danger.
Senator Jaffer: I see the sur place situation arising at the time of humanitarian compassion, showing hardship, such as your example of the Uzbek neighbour given what is happening now in Kyrgyzstan. Is that where you see sur place being used, or is there any other place?
Mr. Shelow: We would not be in a position to suggest to Canada what its national legislation should look like, as long as we believe it is in conformity with national law. We need something in front of us to be able to comment upon.
Various tools and mechanisms can be put in place that can provide a certain level of discretion to provide immediate protection in a case of last resort.
Senator Eaton: As you both are very much aware, Canada needs immigration to build this country. Backlash is sometimes felt against immigration and refugees because we hear constantly about false refugees from democratic countries jumping the queue.
Mr. Shelow, when you talk about rigid or strict timelines because of trauma, language difficulties or being unrepresented, do you have some kind of percentage or statistic that you could give us with respect to refugees? I am not talking about resettlement of entire refugee colonies, but refugees who arrive at our border. Do we keep statistics of how many really are traumatized?
Mr. Shelow: Thank you for the question, senator. It is an important one regarding the concept of abuse and what that can mean in terms of preserving asylum space in a country. Clearly, you have to be answerable to your citizens.
First, I should say that, in Canada, we get our statistics from the Government of Canada, so we do not develop separate statistics here. We receive them from various sources, including CIC and CBSA. I cannot answer your question as accurately as I would like to. However, having worked in the field of refugee protection for some 15 years, I can say that every individual I have met is traumatized to some extent. The question is how much.
When you are trying to distinguish between a refugee and an immigrant, refugees are forced to move by some event; immigrants move because they want to.
Senator Eaton: You are talking about a bona fide refugee, not someone jumping the queue, arriving, and saying, "I am a refugee."
Mr. Shelow: That is correct. By definition, a refugee is bona fide; otherwise, they should not be recognized as a refugee.
Senator Eaton: That is what has to be determined.
Mr. Shelow: I understand.
When you are talking about the linkage to timelines, one of the concerns states frequently have is with an individual being able to come to the country and stay for a long time because of a lengthy process or because there is no removal at the end of the process. In other words, there is no differentiated outcome between being recognized or not recognized as a refugee. That leads to concerns about abuse. We are well aware of this and also quite concerned about it. We are perhaps the most concerned organization in the world when it comes to the concept of abuse because abuse leads to many more closed doors worldwide.
The answer to that is, first, when the process does have an outcome, that outcome must be credible. Individuals who are recognized as refugees are in need of protection, and for those who are found not to be in need of protection, there is some follow-up in relation to them so that the outcome is differentiated.
I am not sure that is particularly linked to timelines, although it is a bit. It is very much linked to outcome and what happens to the individual as a result of being recognized as opposed to being found not to be a refugee.
Senator Eaton: I have trouble thinking that in Canada someone could go unrepresented, which is something you mentioned.
You also mentioned language concerns. I also have difficulty — perhaps it is ignorance, or maybe not — that someone could go before a refugee hearing and not have proper translation or someone to help them with their language concerns.
Mr. Shelow: To answer those questions in reverse order, to use a term used by the IRB, the issue of access to interpretation is clearly a concern both at the stage of an IRB hearing and at the stage of admissibility, or access to territory, such as at a port of entry. In both of those locations, the government tries very hard to ensure adequate interpretation services. The reality is that we see many people coming to Canada who have none of the necessary language skills to speak effectively in terms of their claim. As a result, the need for interpretation is quite serious.
Access to interpreters is also a concern. Canada has fairly stringent requirements with regard to working as an interpreter. The reality is that the number of interpreters who are available to do this work does not necessarily meet the demand. This demand is not simply in relation to asylum claims or refugee claimants. Many processes in Canada require interpretation services in relation to non-refugee immigration matters. The demand for interpreters is high, and the availability of interpreters is not necessarily meeting that demand.
More important, regarding access to representation, the availability of legal aid is increasingly restricted as a result of budget concerns, which is understood. That has been the case given the world economic downturn. Access to legal assistance also varies across Canada. Legal aid services in Ontario, for instance, may well be far superior to legal aid services in British Columbia for refugee claimants. As a result, we see a fair number of individuals submit their claims without the assistance of counsel. We also understand that there are concerns about the effectiveness of that assistance.
Senator Eaton: It could be 5, 10 or 500 people. Do you have actual figures of people who go unrepresented or have trouble getting translators?
Mr. Shelow: We have three officers here in Canada who monitor hearings. For the RPD, for example, we monitor approximately 100 hearings a year. At about one third of those hearings, we see the individual showing up without effective counsel.
Senator Eaton: About 30 people.
Mr. Shelow: Out of 100. I would not say that is in any way representative. I would prefer that you contact our government interlocutors, who provide us the statistics, to better understand the situation.
Senator Martin: Thank you for being here this morning and for your very complimentary remarks and assessment of the Canadian model and the fact that we are a model to the world. I absolutely agree. I think sometimes we may be less appreciative of what may be happening in other parts of the world and take certain things for granted. It was really nice to hear your comments this morning.
I also believe that the key to an effective system is the people who will be dealing with these claimants face to face at all levels of the process. The minister spoke about the training that will be involved and officials talked about the training. Perhaps you have made some recommendations in that regard about the officials or the staff who will be doing that work.
Specifically, this bill proposes to employ public servant decision makers. You have commented on the high quality of decision makers in the current system. Would you comment on whether you have any concerns, in terms of the international asylum standards, about the use of public servants in the system proposed in this bill?
Mr. Shelow: The reality is that we use Canada abroad as an example, sometimes mercilessly. One of our concerns about preserving both asylum space and an effective and efficient system in Canada is we use your staff and reputation to enhance protection in many other parts of the world. For us, it is critical to preserve those things here in Canada so we can encourage better practice and improved processes in other places.
With regard to training, you asked a few different questions — the hiring process and the independence of decision making. In many countries in the world, civil servants are used in the first-instance process, and UNHCR has no concerns to express about that. It is fairly common. We are more concerned with the quality of decision making by the individuals as opposed to how the individuals are employed.
The quality of decision making is impacted in a number of areas. It is impacted by the type of training individuals receive and also the type of information they receive, such as country of origin and background information on particular situations worldwide. A particular ability to be empathetic is important in an environment where you are dealing with someone who is not from Canada. In certain situations, even body language can have a significant impact on interviewing. There are many different issues in relation to interviewing techniques.
We look forward to cooperating with Canada, as we have done in the past, when it comes to training and the provision of information that may assist decision makers. There are two key components: The first is the selection process, ensuring you get right people; and the second is the training they receive once they have been selected. Those are very difficult things to achieve uniform standards in relation to. I think Canada tries very hard in both of those instances.
Senator Martin: I do not have any doubt that this quality will be maintained in the new system, if it already exists. As you say, it is about maintaining the quality of the delivery of service in this new system, which is aimed at improving what we already have. Thank you for your insight.
The Chair: You raised an important matter in response to Senator Eaton's question. You said that 30 out of 100 people that you focused on do not have proper representation or interpretation. Thirty per cent is quite a lot, but I will ask our officials later about what they do in those circumstances.
Getting into the process of humanitarian and compassionate consideration, there is an applicable fee. I do not know what that fee is, nor do I know if you do, but there is a fee. When we are talking about refugees, people fleeing largely in conditions of dire straits and poverty, what are your thoughts or your understanding about that?
Mr. Shelow: I do not know the actual cost of the fee, but in terms of convention obligations, the convention talks about not charging fees to a refugee higher than you would charge to any other foreigner similarly situated.
Frankly, I do not believe Canada is "overcharging" refugees with regard to access to many of these processes. For instance, there are charges associated with obtaining a convention travel document or passport. There are charges in relation to the submission of certain documentation; there are charges in relation to applying on humanitarian and compassionate grounds. I believe that people are not being gouged in relation to those concerns.
The greater concern is this: Should you be precluded from access to a process which is supposed to extend protection by virtue of the fact that you cannot afford to pay? Clearly, our response is no, you should not.
The Chair: I will ask our officials about that later.
I think you touched on this: They have gone through the process and then either right after or sometime after they ask for a pre-removal risk assessment, the PRRA. The provisions in the bill say that you cannot do that if you have had a decision within 12 months in the other process. I think you commented on that, but perhaps you could just clarify regarding changing circumstances. Countries can change very rapidly with respect to the direction they are going. We do have a few examples in the world; I suppose Iran is one of them. What are your concerns in that regard?
Mr. Shelow: I believe you are referring to the one-year, post-negative decision before the Refugee Appeal Division, during which there will not be access to a pre-removal risk assessment.
The Chair: Right.
Mr. Shelow: My understanding is that part of the reason for that is the authorities here desire to assure that there is some end to the process and that, at a certain time, individuals who have been through full and fair procedures can be removed without having to worry about further appeals. We understand that there needs to be an end to the process.
In terms of standards that we propound or promote, we say that an individual should have at least access to a full first-instance hearing and determination, followed by a full appeal that will examine everything, including the merits of the claim and legal procedure. Some countries have chosen to go beyond that, including Canada, when examining risk upon removal. The real issue is not whether you have access to it or not; the issue is how long it takes to remove you. If removal is expedited and speedy, there is probably no need for a further review because country situations do not change that quickly.
If there is a one-year period during which there is a fundamental change in situations in countries of origin, our concern is that individuals have access to some sort of review in terms of what is happening in the country. For instance, there are concerns about ethnicity for Uzbeks in Kyrgyzstan. However, their individual situation may change as a result of changes in country of origin. The example I gave earlier involved an ethnic Kyrgyz helping an Uzbek. There would be most likely no change in terms of a temporary suspension of removals list or something like that in relation to that individual since they are not part of the general population being targeted. However, in that case, it is important for the individual to have access to some sort of protection due to a risk concern.
The Chair: You used Sudan as an example and you talked about someone being removed to a country or part of a country. The provisions in the bill do provide for the minister to designate part of a country. Is that a concern to you?
Mr. Shelow: An individual from south Sudan could quite possibly have difficulties in the capital or in north or central Sudan, so there are serious concerns about designating a portion of a place. You are dealing with governments as opposed to geographic locations.
The Chair: Thank you for that point.
Senator Jaffer: I would like to continue with the point the chair made. I understand that the designation could be for a country, part of a country or a national group, and please clarify if that is not correct. It would be useful for us to hear your experience in this regard. I understand the United Kingdom has designated country status on other countries. How is it working, what are the pitfalls, and what should we be looking out for so we do not make the same mistakes?
Mr. Shelow: One way to examine these issues is to look at outcomes or results of appeals from first-instance decisions where these issues are brought into play. The situation in the U.K. now is of concern because of the significant number of appeals that are recognized, which would lead one to extrapolate that there is some concern about first-instance decision making when it comes to designated countries.
When you mentioned that country, it is not unique. Designated countries or a country list is something used fairly widely in the world.
When UNHCR examines this, our preference and discussion is in relation to speed of process more than anything else, as opposed to precluding people from access. There is usually a joint burden of proof between the refugee claimant and the assessor. A safe country list really helps the assessor because the assessor no longer has to go through a list of questions or an assessment of country conditions but rather can focus on the individual and how their concerns relate to the relative security in a particular country, which allows you to process cases more quickly.
Senator Jaffer: One of my preoccupations with safe or designated countries is that countries that are like-minded with Canada have developed a list of countries thought to be producing terrorists. My concern is that there may a list like the designated countries list we have with like-minded countries. Do you see that happening? Do you have concerns with that?
Mr. Shelow: I go back to my statement earlier that we are a humanitarian organization working in a politicized environment. When you start talking about like-minded countries, I am sure that there is a temptation to politically put your "friends" on a list that recognizes them as being friends. Our concern is that there be checks and balances in any process for designating a country to assure that the countries on that list meet certain objective criteria as opposed to simply being friends of any country, including Canada. I think there is an attempt in this legislation to do just that. When you see what is required in an examination of which countries could potentially be placed on that list, there seems to be an attempt to create objective criteria for assuring that it is not simply a matter that these countries are our allies or friends politically and therefore we will put them on the list.
The Chair: If there are no further questions of our witnesses, I will thank them both for being here and for what they do in monitoring this situation. Keep at it.
Mr. Shelow: Thank you, Chairman Eggleton and committee members. We appreciate you listening to us today.
(The committee adjourned.)