THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
OTTAWA, Wednesday, May 29, 2019.
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred the subject matter of those elements contained in Divisions 15, 16, 18, 19 and 20 of Part 4, and in Subdivisions C, K and L of Division 9 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures, met this day at 3:15 p.m. to study the bill.
Senator Chantal Petitclerc(Chair) in the chair.
The Chair: Honourable senators, we have a busy afternoon. We have a vote. We also have Minister Blair and a second panel of witnesses, so let’s get started right away.
Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
I am Senator Chantal Petitclerc from Quebec, and I am very pleased to be joining you today for this meeting.
Before we give the floor to our witness, I would like my colleagues to introduce themselves, beginning with the deputy chair.
Senator Seidman: Judith Seidman, Quebec.
Senator Ravalia: Mohamed-Iqbal Ravalia, Newfoundland and Labrador.
Senator Forest-Niesing: Good afternoon. Josée Forest-Niesing from northern Ontario.
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator M. Deacon: Marty Deacon, Ontario.
Senator Kutcher: Stan Kutcher, Nova Scotia.
Senator Omidvar: Ratna Omidvar, Ontario.
Senator Moodie: Rosemary Moodie, Ontario.
Senator Poirier: Rose-May Poirier from New Brunswick.
The Chair: Before we proceed with our witnesses, we need to take a few minutes for a matter to resolve. Following our last meeting on Bill C-83, you may have received the memo on it. As a reminder, this Monday, the last meeting, a subamendment was adopted to clause 40.1 by making “House of Parliament” plural to refer to both the Senate and the House of Commons. The Office of the Law Clerk and our committee clerk reviewed the change. They are advising the committee that the subamendment is problematic and grammatically faulty, so we have to correct that.
The amendment in subclause (1) mandates a committee in each house, the Senate and the House of Commons, to conduct their own reviews. It mentions specifically both the Senate and the House of Commons directly.
In subclause (3), the term “House of Parliament” is used like it’s used in many bills to specify individually the Senate and the House of Commons. This is why it has to be singular and not plural. In practical terms, one of the Senate committees would report back to the Senate and the same goes for the House of Commons.
To rectify this issue, you have before you a motion to reconsider clause 40.1 and to adopt a corrected version of the amendment.
If there are no questions, we will have someone move the motion. Are we clear on that? I need someone to move the motion.
Senator Seidman: Honourable senators, I move:
That, pursuant to Rule 10.5, clause 40.1 of Bill C-83 be reconsidered;
That, notwithstanding the decision by the committee on May 27, 2019, to amend clause 40.1, Bill C-83 be amended in clause 40.1 —
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Motion carried.
Today, we continue with a new study on the subject matter of those elements contained in Divisions 15, 16, 18, 19 and 20 of Part 4, and in Subdivisions C, K and L of Division 9 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures.
This committee will proceed through the various divisions this week and next week. This week we will focus on Divisions 15 and 16.
Today we will have the first panel on Division 15. Panels two and three will be on Division 16. I just mention it so you know that tomorrow we will come back to Division 15 with Minister Hussen, who was not available today.
We are pleased to welcome, by videoconference, Robin Seligman, Barrister and Solicitor from Seligman Law. Thank you for being here. From the Immigration Consultants of Canada Regulatory Council, we welcome John Murray, President and Chief Executive Officer, and Michael Huynh, Director of Professional Conduct. Then from the Canadian Association of Professional Immigration Consultants, we have Dory Jade, Chief Executive Officer.
Thank you very much for being here.
I would like to remind you that you have five minutes for your opening statements, followed by questions. We will begin with Ms. Seligman, followed by Mr. Murray and Mr. Jade.
Robin Seligman, Barrister and Solicitor, Seligman Law: Thank you, Madam Chair and members of the committee. I appreciate being invited to participate in this process.
The submissions that I am making today are in my personal capacity, although I am past chair of the Ontario Bar Association, the Canadian Bar Association Immigration Sections, I am an Adjunct Professor of Immigration Law at Western University and have been certified as a specialist in immigration law for many years and have been practising in the area of immigration law for 35 years.
I appeared on the regulation of consultants at a parliamentary committee on behalf of the Canadian Bar Association approximately 25 years ago where the same issues were canvassed.
At the time, the position was that immigration consultants should not be allowed, but if they were going to be allowed that they had to be properly regulated. They were given the opportunity, and since then they have been regulated, which I believe is under IRPA in 2002. They have proven that self-regulation of consultants is not a viable option.
In my opinion, consultants should not be allowed to practise law. In addition, they should be working under the supervision of a lawyer. My position has not changed in all of these years, as I have seen the damage done by consultants either intentionally and/or unintentionally. Make no mistake, they are practising law and are not properly trained to do so. My opinion is that if you want to practise law, go to law school. The same as if you want to practise medicine, go to medical school.
Once again, the government continues to prop up consultants and will continue to allow them to self-regulate, which I firmly believe is putting the public at risk.
The government has allowed the proliferation of consultants at an alarming rate. There are now approximately 5,500 consultants; up from 3,600 consultants since 2016. There are also thousands of ghost consultants in and out of Canada. They seem to be increasing at a rate of approximately 1,000 per year and the numbers are growing because it is just too easy to become an immigration consultant, which I will address shortly regarding the education requirements.
The number of complaints is large, and this is only the tip of the iceberg, as many victims are deported or are too afraid to complain due to their vulnerable status or threats from consultants if they do complain. I’ve provided a link with some of the ICCRC’s complaints.
Under the proposed changes, the government continues to prop up these consultants and now with the government’s seal of approval, including funding of $10 million per year to be paid by the Canadian public.
I see examples of the damage consultants do on a regular basis and have for years. It appears to me that the situation is definitely getting worse. This example I’m about to talk about, as one I’ve seen many times, where consultants have improperly represented applicants at the Immigration Appeal Division and other tribunals.
Recently, I assisted applicants who used consultants and Immigration Appeal Division hearings have been refused. An example is a permanent resident of Canada since the age of 2, now 34 years old, was issued a removal order due to numerous criminal matters, none of them very serious. They had a right of appeal to the Immigration Appeal Division. The person has a Canadian spouse and five young Canadian children, all Canadian citizens. It was clear after meeting with him once that he had very serious mental health issues, including addiction issues.
At the Immigration Appeal Division, the consultant did not present any evidence about his mental health and addiction issues, including psychological reports, efforts to rehabilitate and remorse, which are key removal order appeals for permanent residents with criminality at the Immigration Appeal Division. These are fundamental factors that must be addressed. The consultant had them testify that they had no mental health or addiction issues and that they were fine. This was very clearly not true after speaking to this person for a short period of time.
The consultant lost the appeal, and one of the main reasons was that the applicant did not seem to be getting treatment and did not acknowledge that they had mental health and addiction issues. Nothing was presented. Therefore, when the case came to me and I tried to do judicial review at the Federal Court, it was to no avail because at the Federal Court you cannot raise issues that were not raised at the previous level. The result is the person will likely be deported or removed.
Any lawyer who does this type of work would have discussed and canvassed mental health issues in light of the long list of trouble with the law.
The consequences of losing at the Immigration Appeal Division results in deportation and likely permanent separation from spouse and children. As well, with no family to return to in their home country and lack of medical care, this person is at high risk of suicide. This was confirmed in subsequent psychiatric reports.
On April 24, 2019, the Globe and Mail published an opinion piece by Justice Evans. Justice Evans used to sit on the Federal Court. I won’t reiterate the entire quote, but what he says in there — this was with respect to refugees — he states:
Lawyers also play a vital role in assisting the board and the federal courts on the interpretation and application of the law. Refugee law is very complex. The Immigration and Refugee Protection Act alone has more than 200 densely packed sections. It must be interpreted in light of international human rights law and subject to the protections provided by the Canadian Charter of Rights and Freedoms. Arguing cases in this area also requires knowledge of administrative law, a set of principles that even seasoned litigators find difficult.
I’ve provided a link in my materials for Justice Evans’s opinion piece.
My suggestions are mandatory education at a much higher level. For example, a two-year, full-time program, mandatory language requirements, academic IELTS level of at least 6.5 in all bands, a bachelor’s degree as an entry requirements, no grandfathering, and definitely limited scope work.
Consultants say to me, well, what about nurses and doctors? You have a nurse doing medical type of work and doctors. I totally agree with this as a good comparison. However, nurses have bachelor’s degrees. They work under the supervision of doctors and have limited scope in what they are allowed to do. To obtain their bachelor’s degree, they also have to have necessary language skills.
I don’t think anyone here would think that the government should support medical consultants and allow them to do surgery after a six-month online training course and, as I said, operate on someone.
This is the equivalent of what is being done and suggested to continue with immigration consultants. Immigration consultants have serious impacts on people’s lives without the necessary training or ethics in many cases.
I mean no disrespect to the good consultants, but my answer is the same. If you want to practise law, go to law school.
For example, in Ontario, law clerks and paralegals require a minimum education, language requirements and have limited scope. I’ve given you examples of Centennial College’s paralegal program, which is a two-year full-time college and Humber College’s two-year paralegal program.
By contrast, I’ve included in the materials at pages 17 to 19, CDI and Internet listings for online consultant programs. CDI is just an example, but you can’t even get information when you look at it. It doesn’t tell you how long the program is and you can’t get information unless you put in contact details and someone calls you to solicit you to join their program. I tried that and the only way I could get information was with them calling me over and over again to see if I wanted to register for their six-month program.
By contrast as well, pages 20 to 23 are requirements for nurses, which you will see are bachelor’s degrees. I also mention limited scope work. If consultants continue to be allowed to practise law, then there should be clear parameters as to what they can and cannot do. For example, I would suggest absolutely no litigation. This includes no appearances at the Immigration Appeal Division, Refugee Division, Immigration Division or any other tribunal. They are not trained in matters of law, evidence, civil procedure and the consequences of not being properly represented can mean life and death or permanent separation from family members. This is not an exaggeration.
They may be able to represent applicants on a visitor’s visa applications, student visa applications and basic spousal forms where there are no inadmissibility or complications. A more detailed discussion would have to take place with the government to carve out areas that they should be allowed to deal with and this can easily be done.
This is not a matter of access to justice. There is no evidence to show that lawyers charge more or that applicants can’t access lawyers. The consultants have been very good at PR and hiring lobbyists. However, this government and the Senate should focus on public interest. This path of continuing to allow the practice of law by non-lawyers most definitely has put the public at risk and based on the past, there is absolutely no reason to think that this will change in the future. Now is the time to act and stop this and protect the public. Thank you.
The Chair: Thank you very much, Mr. Murray.
John Murray, President and CEO, Immigration Consultants of Canada Regulatory Council: Madam Chair, honourable senators, good afternoon. My name is John Murray and I’m President and CEO of the Immigration Consultants of Canada Regulatory Council.
Thank you for allowing me and my colleague, Michael Huynh, the council’s Director of Professional Conduct, to appear today in support of the proposed college of immigration and citizenship consultants act included in Bill C-97 as Division 15.
The council is the national self-regulatory body mandated to protect the public by regulating licensed immigration and citizenship consultants and international student advisers.
As the council’s new CEO, I have come to appreciate the important services immigration consultants provide to those coming to Canada. Understanding the complexity and nuances of our immigration system is not easy. Immigration consultants provide prospective Canadians with valuable assistance in navigating our immigration system during what, for many, are stressful and uncertain times.
Consultants also offer consumers freedom of choice, providing advice and access to services at reasonable cost. Today, you may hear criticism of immigration consultants and the council’s previous oversight activities. These criticisms stem from a report on immigration consultants tabled by your colleagues on the House of Commons standing committee on immigration and citizenship in June 2017. Challenges cited in this report included delays in resolving complaints, inadequate consumer awareness measures and insufficient education standards for entry to the profession.
A key recommendation of that report was the creation of an independent, public interest focused body empowered by federal statute to regulate and govern the immigration consulting profession. We could not agree more on the need for federal legislative authority.
Bill C-97 takes this important step towards modernizing the legislative framework applicable to immigration consultants. If passed, Bill C-97 would transition the council into the new college of immigration and citizenship consultants, increase government oversight and give the college enhanced tools and authority to fulfil its public interest mandate. These tools include enhanced powers to investigate, obtain important evidence and compel witnesses to testify at disciplinary hearings.
Other proposed tools will go a long way towards helping to protect prospective immigrants from fraudulent practitioners.
Given the industry’s past challenges, I appreciate that there may be some asking why we should give the council the opportunity to transition into this new role. Let me assure you that today’s ICCRC is no longer the organization reviewed in the 2017 report. We have taken those concerns and recommendations seriously and made significant changes.
In the two years since the report, the council has increased education standards. Earlier this month, for example, we announced the upgrading of prerequisite education standards to a postgraduate diploma level. We have streamlined and improved the complaint and discipline process, strengthened board governance and revamped public communications and outreach strategies.
A major component has been the hiring of new senior leadership, including a new CEO and directors in the key areas of professional conduct, education and communications.
We have also quadrupled staff resources for the professional conduct division and implemented new processes that have significantly improved the complaints and discipline process.
Despite these efforts, our main challenges remain our limited ability to properly investigate serious complaints and our lack of authority to address unauthorized practitioners or ghost consultants, unlicensed individuals who pose as immigration consultants to defraud potential migrants to Canada.
These unlicensed fraudsters pose a real threat to the public and to the profession because they operate completely in the black market and often overseas.
The new college would have its own new authority to take substantive action against ghost consultants. The proposed act also positions the college to work closely with the RCMP and the Canada Border Services Agency to crack down on these illegal operators.
We have made tremendous progress in the last two years and look forward to leveraging this knowledge and experience as the college. We are confident that should Bill C-97 pass, the council will be able to transition smoothly into the new college and keep building on these real and positive changes to create the effective, reliable regulator the public deserves.
Thank you again for this opportunity to speak to you today. We welcome your questions.
The Chair: Thank you very much, Mr. Murray.
To you, Mr. Jade.
Dory Jade, Chief Executive Officer, Canadian Association of Professional Immigration Consultants: Madam Chair, honourable senators, members of the committee, ladies and gentlemen, good afternoon. On behalf of the Canadian Association of Professional Immigration Consultants, I want to thank you for your time and consideration.
On behalf of the Canadian Association of Professional Immigration Consultants, I want to thank you for your time and consideration.
CAPIC strongly supports the college of immigration and citizenship consultants act and believes that it will strengthen consumer protection. However, the lack of solicitor-client privilege, which is consultant-client privilege, is a glaring omission. This privilege is assumed by the Supreme Court for notaries, lawyers and paralegals, which are the three other parts who are authorized representatives. Since immigration consultants offer access to justice at a much more affordable rate compared to other authorized representatives, consultant-client privilege is vital for their clients.
A legal memo by constitutional expert, Professor Peter Hogg, concludes that the privilege should apply equally to immigration and citizenship consultants. Indeed, consumers seeking advice from immigration and citizenship consultants should be entitled to the same level of protection regardless of the type of authorized representative they choose.
A legal memo by constitutional expert professor Peter Hogg concludes that the privilege should apply equally to immigration and citizenship consultants. Indeed, consumers seeking advice from immigration and citizenship consultants should be entitled to the same level of protection regardless of the type of authorized representative they choose.
Hence, we request that the act be amended to include such a privilege for the client and consultant.
Section 80 deals with the bylaws and regulations, but details are lacking. The college makes the bylaws, yet there is no explanation of the limitations in the college’s authority therein. We’re concerned the regulator could draft bylaws without respecting the regulations, which would jeopardize self-regulation.
We experienced this in the past. For example, the regulator previously ran specializations, but these were technically education programs for immigration consultants. We request a parallel system in which the regulator sets the rules, then gives the mandate to a third-party school qualified to teach immigration consultants. The regulator tried to do this in-house once, but it created a conflict.
We request a parallel system in which the regulator sets the rules, then gives the mandate to a third party school qualified to teach consultants and students, then audits and checks the program. The regulator tried to do this in-house once, but it created a conflict.
Finally, we have come across some stories in the media that paint a selective and biased picture of the immigration consulting profession. Is it rational to rely on these viewpoints as the basis of our laws or in the facts of the matter, many of which our current government is aware of?
Within a global context, Canada has done an exceptional job of protecting the public by proposing Division 15 of Bill C-97, as it respects the Charter. Canada has always been a leader in immigration innovation and in maintaining the integrity of the immigration system, of which a federal statute to regulate immigration and citizenship consultants is but another example.
Thank you for the opportunity to appear before you. I am available to answer questions. Thank you.
The Chair: Thank you for your opening remarks. It is time for questions from the senators.
Senator Seidman: Thank you all very much for your presentations. This is probably about the third iteration of a regulatory body for immigration and citizenship consultants, and I’m trying to understand the structure, in essence, and how we’re going to fix some of the problems that existed.
I’d like to address my question to all of you. If I get really specific and look at the board of the college, for example, it is comprised of elected directors who are licencees and directors who are appointed by the minister who are not licensees. In fact, the minister may fix by order the number of directors to a minimum of seven. There’s a lot of flexibility to increase and decrease the size of the board of directors. Then there are these two committees, a complaints committee and a disciplinary committee. The college is essentially responsible, as a professional college, for issuing licences and maintaining standards, and so on.
How will the kind of structure that we are given be different from what we had before? How will it fix the kinds of problems that we’re all aware of? Will it fix the kinds of problems we’re all aware of?
Perhaps I might start with you, Ms. Seligman.
Ms. Seligman: My opinion is that the regulatory body is only one part of how to deal with the issue of consultants. The regulatory body, without matching it or pairing it with dramatically increasing the education requirements and scaling back the scope of work consultants are providing, will do nothing. I think we will be back at square one. This has been going on for I don’t know how many iterations.
From my experience, speaking specifically as a practitioner — no disrespect for the many good consultants out there — the problem is they are just not trained properly. Education is lax and easy to get. You can do a six-month online course, write an exam and you are out there at a refugee hearing. That shouldn’t happen. Paul Aterman, previous chair of the Immigration Appeal Division, has testified that the lack of skill is astounding. I’m not quoting him exactly, but basically people who are appearing in front of these tribunals — where people’s lives are at stake literally on refugee matters and are being deported from family — don’t even understand rules of evidence, rules of civil procedure, research, the law.
Senator Seidman: Thank you. I have a limited time, sorry.
Ms. Seligman: Thank you.
Senator Seidman: I really would like to hear from the regulatory council and the professional immigration consultants. Perhaps both of you, Mr. Murray and Mr. Jade, could say something about this.
Mr. Jade: If I may correct some statements out there, there is no third trial or third time. It is the evolution of any profession. For the sake of example, last year the Government of Ontario moved an extensive amendment to make changes to the Law Society of Upper Canada, including changing its name to the Law Society of Ontario. Evolving in regulation is very normal. I would appreciate correcting the statement that speaks about third time. There is no such thing.
Second, when it was done the first time, in 2003, it was done under Industry Canada. For those of you who may not know, it’s a law that allows not-for-profit organizations to exist. In 2014, there was something called CNCA, Canada Not-for-profit Corporations Act, under which I work ICCRC was created. Both acts are not valid for any kind of regulation. Those acts are good for charity, professional associations, or a group of people looking to do good — that’s it — because everything is given to the members as powers, not to the regulator. The federal statute has been long needed.
The Government of Canada should have done that back in 2002, after over 25 years then — excuse my language here — of a wild west in that field. If that was done in 2002, I would say we would be today before this committee, and other committees at the Parliament, amending the law which the federal statute set back in 2002. Thank you.
Mr. Murray: Mr. Jade is quite correct. The new proposed federal statute will do two things that are crucially important to the ability of the council and subsequently the college to fulfil its public interest mandate. First, it takes the new organization outside the Canada Not-for-Profit Corporations Act, which Mr. Jade notes is more appropriate for a club or an association.
The CNCA has two problems: First, it’s not intended to apply to regulatory organizations; and, second, it’s a brand new statute, so it has not been subject to extensive court interpretation. That leaves it open for members who are subject to disciplinary processes to parse through the CNCA, look for loopholes, and challenge our disciplinary processes on that basis. We have a number of cases in Federal Court right now where members have done exactly that, and, of course, such challenges delay the discipline process for extreme periods.
The proposed act provides for additional powers that will allow us to exercise our public interest mandate primarily against third parties. Under the CNCA, we only have jurisdiction over members. Any other regulatory organization, such as the Law Society or a medical college, has the ability to obtain evidence and compel testimony from third parties and engage powers of search and seizure against third parties in order to support its discipline activities. Those are key powers that we lacked, from the outset and previous organizations in the immigration consulting space have lacked similar powers.
Senator Seidman: I am out of time.
The Chair: Yes, you are. I can put you on for a second round if we have time.
Senator Poirier: My first question is for ICCRC. I’m looking for clarity when it comes to the transition. The bill contains two scenarios: Either you would be continued as a college or discontinued completely to have a stand-alone college. Why would the bill not be clear and have your institution incorporate the modification, and wouldn’t that be more cost- and time-efficient?
Mr. Murray: To answer your second question, yes, it would be more cost- and time-efficient. The only reason of which we are aware for the current structure in the bill is in reference, again, to the Canada Not-for-profit Corporations Act, which requires a corporation created within it to have members’ approval by way of a vote for fundamental changes. This would be a fundamental change to the organization. The plan A and plan B, as we’re calling them, transition provisions of the proposed statute require, under plan A, a member vote approving the application of the council to become a college.
Senator Poirier: Would that be the biggest difference between the two?
Mr. Murray: Yes, that’s correct.
Senator Poirier: My second question is for all three witnesses. We are receiving, as you know, important immigration legislation stuffed into an omnibus budget bill. Did the government consult with your organizations on this matter?
Mr. Murray: The government certainly consulted with the council. We have been talking to the government for several years around the issue of obtaining statutory authority and our need for it. Throughout those discussions, it has been universally acknowledged that an organization like ours without statutory authority is set up to fail.
So we, working together with the government, have been pursuing this for some time.
Mr. Jade: Yes, the government consulted with us, and we submitted papers and submissions in that regard with all details built into it, including a very large part where we proposed some of the fundamental changes to move out of the CNCA.
Ms. Seligman: Yes. Again, I’m not speaking on behalf of the bar today, but I’m very familiar and have participated. The CBA presented a very detailed paper to the committee and has been consulting since. The CBA’s position is that consultants should not be allowed to exist or, if they are going to exist, they have to practise under the supervision of a lawyer.
Senator Poirier: My last question is for you, Ms. Seligman.
As a law firm that specializes in immigration law, how will the transition to the college of immigration affect the immigration lawyers?
Ms. Seligman: What I don’t like to see is the government involved with the actual regulation, and I believe there’s funding going on and other involvements which you mentioned. In terms of holding out to the public — and I’m 100 per cent sure the consultants will do that — it appears the government is giving preference or a seal of approval to the consultants.
In terms of the actual day-to-day practice of seeing what consultants do and the damage that is done by non-lawyers practising law, I don’t think anything will change. As I mentioned, having a college is not going to impact anything, unless you increase the quality of the people who are going through that college or through the education.
I was going to recommend mandatory minimum education requirements to make sure that it’s not left up to the discretion of the college. Left on their own, I doubt much will happen.
Senator Poirier: Thank you.
Mr. Murray: Madam Chair, if I may?
The Chair: Briefly.
Mr. Murray: I would like to correct Ms. Seligman’s assertion that we are receiving funding from the government. We have not received any commitment for government funding throughout this process — or after.
The Chair: Thank you.
Ms. Seligman, you wanted to —
Ms. Seligman: Sorry. I thought it was public knowledge that there’s $50 million for the next five years.
Mr. Jade: Point of order, Madam Chair?
The Chair: You cannot make a point of order.
Mr. Jade: Okay, I understand. Sorry for that. May I make a comment?
The Chair: Absolutely, you can make a comment.
Mr. Jade: I’m not a senator. Sorry for that.
The Chair: Thank you. Everything is on the record, so your voices are heard.
Senator Omidvar: We are presented with sometimes varying points of view and sometimes completely opposite points of view, so it’s up to us to try and find the balance — the road ahead.
I want to get context-specific, because in the abstract, it’s not as clear to me. Perhaps you can help me gain some clarity.
We have heard about the long delays at the IRB and the refugee appeal division. The backlog is projected to be up at 100,000. I want to ask you first, Ms. Seligman: To what extent is this backlog contributed to by what you would define as “inexpert legal advice” to refugee claimants?
Ms. Seligman: Any comments I would make would just be my own personal opinion. I don’t have any statistics on that.
The delays I think are probably coming from numerous areas, including the increase of people attending at borders and making refugee claims. You know what — I don’t really have any data. All I can tell you is that if you’re not properly represented, usually there are delays, procedural issues and the hearings don’t go well so there will be appeals to the RAD. The concern is the quality of representation.
Senator Omidvar: There’s also a cost to the public. Delays cost the system a lot of money.
Ms. Seligman: Absolutely.
Senator Omidvar: Let me turn to you, Mr. Jade. It’s also a question of access. Lawyers, as we know, don’t exactly cost a dime; they cost some money, especially if you are in a legal firm. Now we have a decision of the Premier of Ontario to deny legal aid to asylum seekers.
Will this create more demands on your members, Mr. Jade, and are they qualified? Can you tell me if they are qualified to do the work? To what extent are they able to represent the client through the complexities of hearings at the IRB, possibly appeals to the RAD, possibly a judicial review, et cetera? The difference between good and bad representation would be a difference between life and death for these people. A balance between access and consumer protection is what I’m trying to find out. Could you help me out here?
Mr. Jade: Thanks for the question. I appreciate it. Before answering that question, I want to express an important point. Immigration consultants, in particular CAPIC, with the board association accreditation — CCR and other groups pertaining to refugees — sit with IRB twice a year at the same table and discuss all the matters in detail on a regular basis. This has been going on for over 20 years. That is a clarity issue that probably not everybody knows. That means our members are equally exposed to the matters arising at IRB, to all the issues that IRB is facing and are part, I would say, in a certain sense of the consultation before taking any decision in IRB part of that consortium.
Also, our members across Canada are a part of all the meetings that are regional at ID, the RAD and all other divisions of the board. That is one part.
The second part is that our members follow a very tight CPD program, which allows them to always be at the best possible level. As an example, some of the cases that are recognized as jurisprudence are also done or have been given in some cases by immigration consultants. Many are also won by immigration consultants.
There is one more thing to bring forward. Our members who represent before the board are very knowledgeable and technically do charge less than the counterpart’s lawyers.
In the act before you, once passed, there is something called tier licensing. Therefore, the bar is going to be higher than it is today. Then all those who want to represent before the bar, the new college, once established with IRB, will set a higher standard in order to access representation before the IRB.
As I said in the beginning, it is a regulation process that is incremental and keeps growing and improving with time.
Senator Omidvar: Do I have time for another question?
The Chair: You don’t, but I will put you on the second round if we have time. Did you want to hear from Mr. Seligman? Briefly, if you can.
Ms. Seligman: I’m sorry. The comments about consultants being very knowledgeable and precedent setting is, in my experience, just not true. In terms of charging more for lawyers, again, absolutely no data on that. That is something that has been repeated. There are so many lawyers who practise in the area of legal aid, refugees and removal work who work for free, pro bono, at nominal cost. It’s just inadequate information. I have never, ever relied on the precedent set by immigration consultants. They can’t go to federal court. It just doesn’t exist, from what I’ve seen.
The Chair: Thank you.
Senator Forest-Niesing: My question pertains to the complaint process. I’d like to hear from both sides on this issue.
We understand that the complaint process is not only very lengthy and protracted, but that it sometimes yields very unsatisfactory results in that necessary reprimand or suspensions aren’t affected.
How will the creation of the new college address that issue? Both sides would be of interest to me.
Michael Huynh, Director of Professional Conduct, Immigration Consultants of Canada Regulatory Council: As the Director of Professional Conduct at ICCRC — I joined last year — I’ve had the experience of comparing my experience working with another professional regulator and seeing what that professional regulator does differently than what happens at ICCRC.
In trying to adopt what the previous regulator had done into ICCRC, I recognize there are clear deficiencies stemming from the fact that we were constructed under the CNCA. We didn’t have effective investigatory and enforcement powers. While it’s sufficient to deal with more minor complaints where the member is likely to recognize their incompetence and is willing to take remedial measures, where it’s more serious and where there are issues of fraud, ICCRC was lacking in being able to deal with third parties. Often we’re dealing with complainants who are, for example, temporary foreign workers. The issue isn’t just investigating the RCIC, it involves other unauthorized practitioners, sometimes lawyers and sometimes, most importantly, recruiters and employers, of which I had no authority to look into.
This is a serious deficiency that led to protracted investigations. When you’re looking to revoke a member’s licence, you have to afford them due process. You need to bring forward that evidence, marshal it forward to convince an independent tribunal that this member had actually committed these offences.
When we talk about how this is the third time around, it has been asked numerous times of the government that we need these effective enforcement powers. This is the first time that this has been proposed. I think it was very surprising to come to ICCRC and not see any enforcement powers over unauthorized practitioners or any enforcement powers over our own members. Then third parties and the ability to seek third party evidence and records compromises our hearings.
Notwithstanding that, our organization has worked with what we had. We worked in collaboration with IRCC, the CBSA and the RCMP to leverage their investigation information where we lacked it. Although those organizations are definitely suffering from their resource draws, we tried to combine the information that we could to deal with these very complex labour investigation issues. We have now sought and achieved some very significant penalties, while in the first six years of existence, we only revoked one member’s licence through the disciplinary process.
We are now at a point where we’re revoking a member per month. That is a very significant achievement and it’s not to say that we’re trying to revoke all the members. These are members, whose protracted hearings have taken a lot of resources, not only from us but from the other government organizations that we’re working with.
I agree that there are some significant issues with the regulator as it previously existed, but it’s really a failure of imagination. I saw when we created this regulator that we tried it in a piecemeal fashion and only created it with some residual powers but not the key one, not the enforcement powers.
I think with this bill being implemented those members who are abusing their clients and are reported in the news, we will not only be able to bring them to task but send a strong message that this type of behaviour will not be acceptable going forward.
Senator Forest-Niesing: Thank you. Is there any time for a response from Ms. Seligman?
The Chair: Yes.
Ms. Seligman: Listen, putting teeth in the regulator is fundamental. If this legislation passes, it’s fundamental and crucial to help protect the public. But again, I can only reiterate, without the — piece and mandatory education requirements and limited scope — which I haven’t heard anybody talk about in terms of education requirements — I really think you’re going to be dealing with the same people who are getting in, practising law and they’re just not trained and, a lot of times, not ethically qualified to practise law. Say what you will about lawyers, lawyers have degrees, they go to law school, articling, bar exams, et cetera. They are highly regulated. You’re giving this power to people who just don’t have these qualifications. Again, a six-month online training course.
Unless I hear something that a mandatory minimum two-year properly regulated course — not by these online programs and private schools — properly regulated with proper education and unlimited scope, I think we’re going to be back here in a number of years and the numbers will increase to 10,000. The damage will be done. The key here is, as Senator Omidvar said, balancing public protection with what you have in front of you. I think mandatory implementation of a minimum level of education is fundamental.
Senator Forest-Niesing: Thank you.
Senator Ravalia: Just to go on with what Ms. Seligman referred to with respect to the completion of a two-year postgrad course, would you be able to highlight for me what this course would entail and the types of follow-up? Will there be a need for ongoing educational requirements to maintain one’s status? What would be the implications for the current consultants once the council becomes a college and the potential impacts on those whom you’ve been monitoring with respect to possible dubious practice?
Mr. Murray: I can start with a description of the proposed changes to the education system.
Right now, members of the council are required to take an immigration practitioner program, which is offered at the college level, and currently consists of a minimum of 500 hours of study. Following that, they are required to demonstrate mandatory French or English language benchmark standards and complete an entry to practise exam that is designed and offered by the council.
Once admitted to membership, they are required to take nine professional management education courses which are offered by the council, and meet annual continuing education requirements; 16 hours of continuing education related directly to immigration law and immigration processes.
Starting in September of 2020, we will be offering to replace the immigration practitioner program with our recently announced postgrad diploma program which will be offered nationally in English through the Queen’s University’s Faculty of Law and in French through the University of Sherbrooke’s Faculty of Law.
That will be followed by a mandatory practical experience program and then a revamped entry to practise examination. So you can see we are committed to significantly raising the standards of education to entry into the immigration consulting profession.
The continuing education requirements are under review right now, but there’s certainly no intention to lessen those.
Ms. Seligman: If I can comment on that as well. Of course, any increase in educational requirements is welcome, but again, the devil is in the detail. I have faith in Queen’s University, and I have spoken to one of the professors there. If the mandatory requirements are a bachelor’s degree and, again, limited scope. These people are not getting the same qualifications as a lawyer. Just like if somebody did a modified version of a medical diploma or a nurse, they’re not allowed to practise medicine. It would have to be limited scope and they can’t call themselves lawyers.
The other thing is that this is all discretionary at this stage. There’s nothing holding the new organization to these standards. This is all an idea, and that’s why I would like to see it in the act or by regulation mandated that there has to be a minimum, and of course, ongoing upgrading of education, and very high levels of entry requirements. Perhaps what I’d recommend is a bachelor’s degree, just like for the law clerk and paralegal programs. That’s the minimum requirements for them.
Again, without the pairing up of the regulatory agency and making this mandatory, I think we will be back at the same place with problems.
You have to deal with the grandfathering. The position I put forward is no grandfathering, but I don’t know how you would transition people — there have to be educational requirements. You can’t let this proliferate for the next year or two where you have 6,500 people out there and like the Wild West let them continue what they’re doing. There has to be some reining in or some reeducation.
The Chair: I know, Mr. Jade, you want to comment on that. We have a few more minutes because there’s a bit of a delay with the minister arriving, so this will give us more time for a little bit of a second round. I will let you comment on that and we will see how much time we have after.
Mr. Jade: Thank you. That’s good news. Just as an example, I was a teacher at CEGEP St. Laurent who gave that program for many years, and in my class I had several lawyers, and at least two notary publics in Quebec who were members of Chambre des notaires du Québec..
They took the whole course because in law school they do not learn immigration and citizenship law. I would like to hear from Ms. Seligman on that matter.
The Chair: So you’re questioning our witness is what I understand.
Ms. Seligman: I can answer that question because I teach immigration law at Western University and I hire students from Osgoode Hall, and from Windsor and Ottawa, where they actually have very intensive immigration and legal aid programs and students take that. The ones who are interested in immigration law take those programs, but remember, if there are 150 or 200 law students, there’s a small number who will be interested in immigration law. When you’re dealing with your program, everybody is interested in immigration law. So what you’re saying is just not true, because almost every law school I know of, everyone I know offers very intensive programs in immigration law and practical programs.
The Chair: Thank you very much. I realize that there are very different views on the floor here today. Of course, like Senator Omidvar said, it will be up to the senator to go through that.
Senator Moodie and Senator Deacon have questions.
Senator Moodie: My question is around the cost to the consumer. We know there is an issue here, often protracted costing that ends up costing a huge amount of money for the unfortunate folks who need the services of consultants at times. I’m wondering about a fee structure and self-regulation around this.
As a college, is it your intention to look at a start to end fee structure and mandate, and regulate that aspect as well?
Mr. Huynh: That’s a very interesting issue about controlling fees. The reason being is that obviously lawyers themselves don’t necessarily set their fees for specifics across the board. I know the RCICs themselves would like to operate in a free market and charge what they think is appropriate for the amount of work.
We are, however, working on a fee guide. The reason we’re doing so is because in very specific areas, as I just mentioned, dealing with work permits for temporary foreign workers, there’s a lot of abuse where the individual doesn’t really understand what they’re paying for. The fee guide wouldn’t just necessarily focus on the amount, but really educating the client what exactly is he signing up for, is it appropriate that he should be paying for the job, is it appropriate he’s paying the recruiter for that job? Those are things that need to be clarified. I think because globally there’s a misconception about what appropriate practice for recruiters is — certainly in Canada this is not appropriate. Internationally we do not generally accept it. So I think in those areas we will be working on specific fee guides where it’s a bit easier for us to define what an appropriate amount for a temporary foreign worker to pay for a work permit application is. In other areas, because it’s more complicated — spousal applications, student permits, sometimes can be more complicated than others. But certainly we would be thinking about providing a range.
Senator Moodie: With due respect, I’m a physician and my college puts fees in front of me, and it’s very clear what I can charge. Every step of the way, my patients know if they were to be on the free market they’d know what they’re getting.
Mr. Huynh: Maybe I’m misunderstanding.
Senator Moodie: So if I go to a lawyer and ask for a house purchase, start to end, generally they can tell you this is what it’s going to cost you. So is your college going to be looking at the various tasks that your consultants offer and create a fee structure that not only guides, but enables you to go back and regulate against inappropriate?
Mr. Huynh: That is certainly something we’re looking into, yes.
Senator M. Deacon: We’ve heard about scope, we’ve heard about lack of scopes, cost, balance, things we’re trying to achieve from different perspectives today, and I’ve enjoyed listening to some of the answers about diversity and questions thus far.
As I’m sitting here, I’m trying to take this opportunity this afternoon what we’re missing. I’m curious, Ms. Seligman, what you haven’t been able to say that you would like to say to us this afternoon, and to our panel folks here, because I really think this is an important issue. But we also have diversity, and I want to make sure we get it all.
Ms. Seligman: What I haven’t said?
Senator M. Deacon: Yes.
Ms. Seligman: Well, I think I’ve been very clear. My position is that immigration consultants should be working under the supervision of lawyers. I said it very black and white. My opinion is if you want to practise law, go to law school. Make no doubt about it, what they’re doing has serious impact and they are practising law. You may say, well, even a visitor’s visa application, what’s the big deal in that?
When you have someone not trained in the law and ethics, and they tell people to fill out application forms and lie on them, and put in false information because if they put in false information, for example, that they’re married and have children when they’re not, they’ll have a better chance of getting a visitor’s visa because the visa officer will think they will return to their home country. This is something I see all the time, consultants telling people to do that. Not necessarily regulating consultants, but ghost consultants.
What’s the impact? That’s misrepresentation. It’s a five-year bar from coming to Canada. Future applications, when they go to apply, they’ll be refused. What if they get married to someone? They’re not allowed to come to Canada because they’ve misrepresented. So the consequences are serious.
Knowing that it appears this government is not going to follow through with the Canadian Bar Association recommendations, what I recommend is consultants must work under the supervision of a lawyer, my next step then is make sure they’re very educated and qualified. Again, I’ve said limited scope, because otherwise you are not protecting the public. At the end of the day, the public is at risk, and that’s the number one thing.
The Chair: Thank you, Ms. Seligman.
Senator Deacon, very briefly.
Senator M. Deacon: I just wanted to say, you were also very clear when you started indicating that this is my opinion. I think you were very clear in how you presented yourself at the beginning of your conversation this afternoon.
We understand and we hear that. Are you also, in your network of legal practice and teaching at university, actively engaged with many others who are doing the same kind of work you’re doing?
Ms. Seligman: Yes, I am. When I say “my opinion,” that’s because today I’m not appearing on behalf of the Canadian Bar Association. But in the past I have been actively involved in their position. I can probably say more than anybody in this room that I’ve been involved in this issue for longer. Again, I can’t even remember how long it is, but if I have been practising for 35 years. At least 25 years ago I spoke to the parliamentary committee investigating this issue. That’s how long I’ve been involved and that’s how concerned I’ve been about what I see in the proliferation of consultants. It’s only gotten worse and the numbers are out of control, as far as I’m concerned.
Senator M. Deacon: Thank you.
The Chair: Thank you, Ms. Seligman. I trust that our witnesses still have time to stay with us while we wait for the next panel. Is everybody fine with that? The witnesses are okay? My apologies, Ms. Seligman.
Ms. Seligman: I can probably stay another 10 minutes because I’m catching a flight to Winnipeg.
The Chair: That’s appreciated. Thank you.
Senator Omidvar: With respect to consumer protection. I have worked with refugee claimants and immigrants through my whole life, and I know stories of people whose applications have not been filed, where money-back guarantees have not been offered, where decisions for refusal have not been disclosed, exorbitant fees, frivolous applications, et cetera. However, immigration consultants exist and I want to second Ms. Seligman’s proposal that now what we have to do is make sure that they are able to provide the service to the customer that is of certain standards.
I want to ask you the question about grandfathering. Do you have a response, either the association or the college? Do you have a proposal? How do you bring current members up to the bar that is now being proposed?
The Chair: I will ask for very brief answers. The next panel has arrived, so if you can be very brief and specific and then we can suspend for a few minutes.
Mr. Murray: Grandfathering is an issue that every profession has to confront as it evolves. When I started legal practice 30 years ago, there were lawyers who had never gone to law school because the law school system hadn’t been introduced.
It is a difficult issue. It is dealt with primarily through continuing education. It was mentioned earlier that the proposed statute provides for tiered licensing so that individuals, for example, who are going to represent or advocate before the IRB or other government tribunals will be required to take additional specialized training. To date, that is the way in which we intend to proceed with the grandfathered individuals.
Senator Omidvar: I’m not sure I understand your answer. Are you going to grandfather or not?
Mr. Murray: Yes, our intention right now is to grandfather existing members but to require additional qualifications.
Senator Omidvar: In other words, the standards proposed will not be met?
Mr. Murray: They will be ramped up through continuing education.
Senator Omidvar: In the meantime, customers will continue to be impacted.
The Chair: Thank you to our witnesses. I’m sorry to interrupt, but we need to welcome the next panel.
Honourable senators, we are proceeding without further delay with our study of certain elements of Bill C-97. With the help of the next two panels of witnesses, we will examine Division 16 of Part 4, which amends the Immigration and Refugee Protection Act.
We are privileged to have Bill Blair, Minister of Border Security and Organized Crime Reduction. Welcome, Minister. From the Department of Immigration, Refugees and Citizenship, we welcome Fraser Valentine, Director General, and André Baril, Director, Refugee Affairs, as well as Jennifer Lutfallah, Director General, Enforcement and Intelligence Programs at the Canada Border Services Agency.
Minister, please go ahead with your presentation. Thank you for being here today.
Hon. Bill Blair, P.C., M.P., Minister of Border Security and Organized Crime Reduction: Thank you very much, Madam Chair, and thank you all.
Honourable senators, I am honoured to have the opportunity and privilege to come before you today and to speak to this important issue. Today I am here to speak regarding the government’s proposed changes to our asylum system and some border enforcement measures that are contained, as I’m sure you’re aware, in Bill C-97.
Since the Second World War, there has never been as many people displaced across the globe. An estimated 258 million people are now on the move globally and more than 25.4 million of those have been identified as refugees.
Countries around the globe have had to adapt quickly to offer a safe haven to the world’s most vulnerable people, and Canada is no exception. Like many other countries in the world, Canada has experienced recent increases in that global migration.
Given the status of migration worldwide, a high number of asylum seekers are likely to continue into the future. That’s why we believe it’s imperative that our refugee protection system be equipped to deal with future influxes and surges. While it is impossible to predict the future, we plan to be prepared.
We must ensure that both our borders and asylum system are well managed to continue meeting our international obligations of providing protection to those who need it. We must also ensure that our asylum system continues to uphold the principles of fairness and compassion for all asylum claimants.
In Budget 2019, we have proposed to invest $1.18 billion over a five-year period starting in 2019-20 and a $55 million ongoing annual investment to enhance the integrity of Canada’s borders and asylum system.
With these investments, we intend to build on the work that has already been done to manage Canada’s borders and further improve upon the efficiency of Canada’s asylum system without in any way compromising its fairness or compassion.
These investments support the government’s border enforcement strategy and will increase the asylum system’s capacity to handle higher volumes of claims in order to provide timely protection to refugees and to ensure that failed asylum claimants are removed more quickly and more efficiently.
With this additional funding, the Immigration and Refugee Board will be able to finalize more decisions, up to 50,000 asylum claims and 13,500 appeals by fiscal year 2020-21. This will significantly reduce wait times for those who are in need of our protection and lead to faster removal of those failed claimants.
In addition, we are increasing funding to allow for the timely removal of individuals who are found not to be in genuine need of protection and we are taking measures to expedite the removal of failed claimants who have crossed irregularly into Canada.
As you are aware, Madam Chair, a proposed legislative change would limit access to the Immigration and Refugee Board to individuals who have made asylum claims in other countries with whom we have a biometric and information-sharing agreement.
This proposed measure is intended to align with the principles of a safe and orderly migration supported by the Global Compact for Migration. This measure will also help to lessen the caseload of the IRB while still maintaining and ensuring that everyone receives fair treatment before being removed to their home country.
That being said, the government recognizes that some concerns have been raised about this proposed change in our processes and it is important to note that this cohort of claimants will receive a pre-removal risk assessment, or, as it’s commonly referred to, a PRRA, to ensure that they will not be removed to a risk of persecution, torture or mistreatment.
To that end, we are supportive of the amendments made by our Finance Committee in the other place that will ensure everyone in this new cohort will have the opportunity to receive an oral hearing.
A positive PRRA decision confers protected person status upon the applicant, and they can apply for permanent resident status. This is the same status they would receive from a positive decision at the RPD. Those who are not found to be at risk would be quickly removed to their home country.
Madam Chair, the border enforcement strategy would also maintain the integrity of Canada’s border. We are investing in ongoing capacity for interceptions between points of entry as the RCMP continue to increase their capabilities at key locations at the border and to invest in new border technology equipment. We are putting in place contingency measures to ensure that we are ready to respond to any potential increase in the number of irregular migrants.
And in recognition of the increased volume of asylum claims, we are also investing more in settlement funding as more people will be given protected person status.
Given that protected persons are eligible for settlement services, such as language training, we believe this investment is an investment in the future of Canada.
Madam Chair, we are investing in the asylum system to make it a system that is fast, fair and final.
With the Budget 2019 investments and legislative proposals, Canada will continue to respect and uphold its international obligations to people who are legitimately fleeing persecution and to achieve finality in our asylum system.
Taken together, we believe these measures will ensure Canada processes asylum claims in a way that is consistent with our domestic and international obligations while safeguarding the integrity of our borders, our immigration system and safety of our citizens.
Thank you very much, Madam Chair, and I welcome your questions.
The Chair: Thank you very much. We do have questions.
I want to remind the members of our committee that we have a vote at 5:30, which means that we will need to conclude this panel at 5:15. That being said, let’s begin with questions.
Senator Seidman: Thank you very much, minister, for being with us today and for presenting us with some of the first facts about this piece of legislation.
I would be remiss if I didn’t make mention and put to you the piece that is in the National Post today regarding Richard Wex’s appearance in front of the House of Commons Public Accounts Committee yesterday. That was in response to the Auditor General’s report that was released earlier this month in which the Auditor General said that the asylum system is unable to cope with spikes in the number of claimants and poor sharing of information between the three agencies.
And, of course, you have just put $173 million into the system in 2018 and now another $1.18 billion over the next five years.
Mr. Wex said this is basically all just to manage the system. It’s not really going to help do away with the serious problems in the system, but it’s going to allow us to manage the system. Those were his exact words.
I’d like to hear, perhaps, some words from you on how you think these changes, which are quite significant, will help to improve the system, as opposed to merely managing the system?
Mr. Blair: Yes, ma’am, and I will try, in acknowledgment of your limited time, to be brief in my responses. I’m always subject to your direction, Madam Chair.
Canada has experienced surges in people coming to Canada seeking asylum in the past. Frankly, beginning in 2017, a new phenomenon presented itself where we saw a significant surge of people crossing our borders irregularly and making application for asylum. The total number of refugee claimants, regardless of how they presented themselves to make the claim, either crossing regularly or irregularly, began to increase fairly significantly, as a direct result of things that were happening around the world and in neighbouring countries.
Up until that time, the IRB was funded and staffed to conduct approximately 24,000 hearings per year. What we were seeing was close to 50,000 people coming across and making a claim. So we recognized the importance of our responsibility to maintain a well-managed system.
We had to take two approaches. One was to significantly increase IRB’s capacity to conduct hearings. We made a significant investment in 2018 and, as you’ve mentioned and acknowledged, we’re making an additional investment in 2019 to nearly double IRB’s capacity from 26,000 to 50,000 a year.
At the same time, we have been making significant and, I believe, quite successful efforts to reduce the number of people crossing our borders irregularly. For example, so far in 2019 we have seen a 47 per cent reduction in the number of people who have crossed our borders irregularly. The numbers are going down. That’s not an accident, senator. That’s a direct result of some very hard work done by our officials on interventions and outreach to communities and governments around the globe and, frankly, some very good cooperation from our international neighbours in helping Canada manage those flows.
So we are significantly increasing our ability to conduct hearings in a more timely way and we have been taking steps, included in Budget 2019 and the bill before you today, to help better manage those flows and processes. It’s a combination of many factors that form part of our plan to manage this more effectively.
We are seeing a somewhat significant abatement in the number that are making application irregularly. But among those who are coming in at regular points of entry and making inland claims, we’ve seen an increase in those numbers, again, reflective of the global environment.
We’re continuing to monitor it. We’re working closely and Mr. Wex is the manager of IRB.
In my experience, he brings a very thoughtful and careful response to managing that. I have great confidence in the investments we’re making in IRB under his leadership. It’s not simply a matter of more resources, but better utilization of those resources and I believe that’s reflected in Mr. Wex’s work.
Senator Poirier: We have in front of us a division from your government’s omnibus budget bill that will make important and major changes to the Immigration and Refugee Protection Act. It should require a longer study, and examination by the different committees instead of being pushed through the omnibus bill. Why is your government not presenting this division as a stand-alone bill so that it would receive the proper scrutiny? What is the rationale for that?
Mr. Blair: What we brought forward was a very comprehensive response, which included significant budget investments in Budget 2019. If you have the opportunity to read the budget document we presented, I think we were very clear that what we were presenting was a comprehensive response to more effectively and efficiently managing the refugee asylum system and refugee determination system.
The significant investments we made were coupled with compatible and complementary regulatory measures that would make those investments more effective. That’s why we’ve presented them together in that bill. We believe the regulatory changes that we have included in this bill are very much tied and complementary to the significant budget investments that we’re making in the system.
Senator Poirier: Division 16 introduces a new ground of ineligibility for the refugee protection if a claimant has previously made a claim for refugee protection in another country, whether the United States, the U.K., Australia, New Zealand. Do the other four countries have similar language for the grounds of ineligibility if the claim is made here in Canada?
Mr. Blair: I can tell you, senator, that provision is based on a principle of asylum primacy recognized by the vast majority of countries, including those with whom we have information-sharing agreements, which are the ones that you named. The principle of primacy is that it encourages refugee claimants to make their claim in the first country to which they arrive.
Of course, people coming to Canada in an irregular fashion are those that have come from the United States. We are surrounded by water otherwise. Since 2004, under the provision of the existing treaty between Canada and the United States, third country agreement, those individuals who had previously made a claim in the United States would not be eligible to make a claim in Canada. The fact that provision did not apply to those who crossed irregularly created an unfortunate and unintended incentive for people to cross irregularly.
Senator Poirier: Are we the only country out of the five with this ineligibility? If so, wouldn’t this be increasing the backlog?
Mr. Blair: In fact, senator, I believe it does exactly the opposite. It actually reduces the backlog in IRB and presents what I believe is an appropriate and compassionate opportunity for a hearing if a person is determined to be in need of protection. But what we want to encourage is for those who have already made a claim in a safe country, that they continue to pursue their claim in that country and not make a subsequent or second claim.
Senator Poirier: But we would be the first country doing that?
Mr. Blair: I don’t believe that’s true, but I’ll ask my colleague from IRCC to comment.
Fraser Valentine, Director General, Refugee Affairs, Immigration, Refugees and Citizenship Canada: All of the countries with whom we have information-sharing agreements have robust asylum systems, so they’re comparable systems to ours. None of the other countries, however, have the measure that we would stream these folks in the eligibility stream, the pre-removal risk assessment. None of those countries have that type of tool in their asylum program. The answer to your question is they don’t have a similar kind of ineligibility provision because they don’t have that tool in their asylum program.
Senator Omidvar: You talked in your opening remarks about features of our system, you talked about fairness and compassion. I think we should add independence to that list because one of the features of our system is that the decisions for asylum seekers are made by members of the IRB who are independent adjudicators.
In this case, in your PRRA, I understand there is some consideration to make it an oral hearing, and it will still be conducted by public servants. I have great admiration for our public servants, but I do not believe they are completely independent from the political arm.
My question to you is: Why would you not consider having IRB judges hear the PRRA and thereby retain the independence of the system and save yourself all the money that will be spent? And I’d like to know how much money exactly will be spent in this diversion. Why would you not reinvest it back in the IRB, because as we know, the IRB is under-resourced even as you’ve resourced it up.
Mr. Blair: Senator, I’ll attempt to answer your question, and then if I may, I’ll also refer to my friend from the IRCC, perhaps to provide a more technical response.
I will tell you that the function of the IRB is to determine an individual’s eligibility for refugee protection. That’s fundamentally their responsibility.
The system of determining pre-removal risk assessment is a different function, and I understand your concern. We’ve chatted previously about the independence of the public service. Those assessments have historically been made not by appointed judges in the IRB process but by public servants. What we have seen, certainly in the last two years, is a significant increase in the number of people who have not had access to the IRB and to the approval and acknowledgment of their risk. That’s essentially the function of the PRRA as we’ve defined it.
In recognition of Canadian law, we believe it is appropriate that they have the opportunity for a hearing, and that will now be reflected in the legislation as a result of the amendment brought forward by our finance committee. They should have opportunity to be heard; and second, they should have access to legal representation. That’s a feature of that hearing. Finally, that the decision of that hearing is also subject to independent oversight review by the Federal Court.
I appreciate that is often limited to issues of law, but that does provide some element of independence.
Let me also assure you that for the determination of the refugee status, the independence of the IRB is something that we hold very dear, are protective of and will be maintained. Frankly, the pre-removal risk assessment is a different function and a different determination. I believe, in the vast majority of circumstances, it’s the appropriate way to do it. But I’d ask Fraser to comment about possibly other technical issues.
Mr. Valentine: Thank you, minister.
I have two additional points, senator. The first is, as you know, the Immigration Refugee Board is both institutionally independent from the Government of Canada, as well as the decision makers are independent.
In the pre-removal risk assessment stream, while the officers are in the department, their decisions are independent and not fettered by either ministers or by senior management. That approach is consistent with the decisions that are made in other lines of business by decision makers. In our visa stream, for instance, those decisions as well are not fettered, so it is consistent.
Second, with respect to your question about cost, the cost is an incremental increase of $10 million a year. So the total ask that’s contained in Budget 2019 is $50 million. Just to give you a sense of what we will be paying for, we currently, in the department, employ 65 officers who are decision makers in the pre-removal risk assessment stream. These funds will pay for an additional 49 officers that will be making decisions.
Senator Omidvar: Thank you.
I’m not convinced about the unfettered decision makers. We dealt with unfettered decision makers at IRCC through citizenship revocation and this chamber dealt with that problem.
My question to the minister is more of looking forward. My concern is that by creating this diversion, however limited you think it will be that in the future successive governments, yours or others, may choose to divert more and more people to a less-articulated system. Do you share that concern?
Mr. Blair: It’s difficult for me to speak to future governments, but I can speak to my government’s intent and it’s that we believe that if people have made an application in a safe country, they should continue to pursue that application in that place. However they come to Canada, if they are determined prior to their removal that they would be given the benefit of a hearing to determine whether or not they were in need of protection. If, in fact, it is determined they are needing protection, they would be given protected person status, which is essentially from a legal standpoint the status of those who have been successful in other processes and we would not remove them to a place of risk. That’s our position.
I will also tell you that we had, just the senators may be aware of the numbers. In the past two years there’s been approximately 3,000 individuals who have entered Canada in a regular fashion, who have subsequently made a claim for refugee status, for whom it has been determined they had made previously a claim in another country, the United States. We are determining that the best way to deal with those individuals is through this enhanced process. Because we now have, essentially, re-established the balance between how people can access the system — whether or not they cross at a regular point of entry or an irregular point of entry — we expect and are seeing a significant reduction in the number of people who have already made an application in the United States subsequently coming to Canada. We’ve put in new rules so that is not a way to get around the system. The rules are applied exactly the same, whether you come at the airport, come at the Ambassador Bridge, or whether or not you come at an irregular point of the rest of our border. We believe the principle of fairness requires that people would be treated fairly and appropriately according to our laws, regardless of how they come.
Senator Omidvar: Thank you.
Senator Eaton: You certainly have a challenge. I think immigration is going to be one of the great challenges for the next 50 years of the movement of people.
What I’m interested in, with this third-party agreement that we have with most of the Five Eyes and specifically with the United States, is how confident are you in the information you’re getting from them? Because it seems to me when they were crossing through the woods in Quebec and Manitoba, practically freezing to death, that the U.S. was only too happy to see people go. Now, that might be a cruel thing to say, but it was an easy way for them, instead of deporting them, “Oh, go up to Canada, walk through the woods.”
The irregular border crossers in recent months and years, what proportion of people has your department determined to be failed asylum seekers in the U.S.?
Mr. Blair: Yes, ma’am. Of the approximately 50,000 that have come in the last two years, as I said, about 3,000 have been identified as having made a claim in another jurisdiction — they’re not failed claimants, but people who made a claim in another place and not pursued it. I don’t have a precise number of any who had been rejected in another place only those that made an application.
Senator Eaton: It’s none of our business anyways if they made a claim in another country.
Mr. Blair: In my experience — I’ve been principally on this file since last summer and working very closely with U.S. officials — I have found them to be very good partners and very responsible in working together to maintain the integrity of our border. The integrity and security of our border are important to both of us. There’s good collaboration between our officials and their officials.
There’s also an acknowledgment that the agreements that exist between us can be improved, with the advent of new technologies and changes in the global migration and the environment —
Senator Eaton: You’re in negotiations right now?
Mr. Blair: We are certainly in discussions on how this might be improved and enhanced to the mutual benefit of both countries. As we work together — if I may, I’ll just share a quick example.
We found that there were a significant number of people that were obtaining tourist visas to come into the United States and in a relatively short period of time presenting at the Canadian border and making an application for a claim. It brought into question the issuance of those visas to the United States in that country from whom those people were originating. We went to the United States, worked very closely with them. They recognized the vulnerability they were creating and took some appropriate and proactive at the present steps in collaboration with our officials and we were able to achieve in very quick order a 73 per cent reduction from the people coming from that country using tourist visas and presenting themselves at our border. That’s a result of the collaboration and cooperation that exists between our two countries.
Senator Eaton: When you decide someone has made a claim in another country, do you deport them back to the U.S., obviously after a risk assessment, but do they go back to the U.S. or do they go back to their country of origin?
Mr. Blair: No ma’am, frankly, there’s no requirement for the U.S. to take them back.
Senator Eaton: Okay.
Mr. Blair: After the determination of risk through the pre-removal risk assessment, if it was determined they were not at risk, they would be subject to removal back that their home country not the United States.
Senator Eaton: Thank you.
Senator Moodie: My question pertains to gender. Women who find themselves in the U.S. claiming refugee status that may have experienced domestic violence and/or some other horrific situation such as female genital mutilation may find themselves not having exemption in that country and may seek to come to Canada because we do. Can you tell me how this bill actually affects and plans to deal with those asylum seekers who may find themselves in the U.S. not being considered in any special way?
Mr. Blair: Yes, ma’am. I’d like to assure all of the senators present that prior to the introduction of this bill our government undertook a very in-depth GBA+ analysis. We recognized there were significant gender issues, because of the intersectionality with the LGBTQ, the vulnerabilities that exist for those populations, we wanted to ensure that we were not putting anyone at undue risk. So we monitored that situation very carefully.
I can tell you and hopefully assure you that if a person was unable to proceed with their application, for example, in the United States if they’re not recognizing, and I know their attorney general has indicated they’re not recognizing domestic violence as grounds for asylum in that country. If they came to Canada, they would be given the benefit of a risk assessment. If it is determined that they are at risk as a result of domestic violence or for discrimination as a member of the LGBTQ population that they would be afforded the protection of Canada. We would not remove them to arrest we would give them the benefit of a hearing and if they are determined to be at risk they would receive our protection.
Senator Moodie: Does that mean they get an exemption or you don’t go as far as that?
Mr. Blair: No ma’am, there would still be a determination of risk for those individuals and for anyone who is determined to be at risk. We acknowledge the risk inherent to those potentially violent intimate partner and domestic relationships, we recognize that risk as a risk for which people would require protection. If they require our protection, they’ll receive it.
Senator Moodie: Good. Thank you.
Senator Dasko: I have questions about the irregular people who cross the border. I’m interested — you said there were less so I take that as a sign of success that there are fewer than before. How successful are they as refugee claimants, successful claimants, compared to the non-irregular crossers? What is the success rate they’ve had as claimants? Can you tell us who they are? Do they come from particular ethnic/religious backgrounds? I’d be interested to know who they are and if that’s changed over time.
Mr. Blair: Yes, ma’am, thank you. I have some numbers for 2018. It’s one year, but I think it gives us a good understanding of what we’re dealing with. Of the people that made a claim — crossed our border irregularly, which is not at a regular point of entry and made application for determination of their status as refugees, there was a 49 per cent acceptance. Of the total, 49 per cent were deemed to be at risk and therefore were afforded Canada’s protection. Fifty-one per cent obviously not.
There are a number of processes in determination of that. They have the initial hearing, but also there’s an appeal division and, depending on the passage of time, possibly access to a pre-removal risk assessment. They are also given the benefit of appeal courts. But that success rate —
Senator Dasko: How would the 49 per cent compared to other claimants, non-irregular claimants, if I could put it that way? Is the success rate higher compared to others?
Mr. Blair: Compared to those who cross at irregular points of entry making claims? It’s about 10 to 15 per cent lower than the irregular migrant than it is for those who cross regularly.
With respect to how it breaks down, that can change over time. As I’ve said, we had a very significant number. The highest cohort of people coming to Canada was coming from one particular country in Africa.
Senator Dasko: Where’s that?
Mr. Blair: Nigeria. We found that, overwhelmingly, they were coming into the United States on the strength of a tourist visa issued for the purposes of coming to the U.S. for tourism and presenting themselves at our border. As a result of working with both the Nigerian government and the American government, our CBSA and IRCC officials were able to effect very appropriate changes. It was not simply limiting their access to come to North America; it was also a lot of outreach and information-sharing in terms of education. There was a lot of misinformation and a lot of myths being perpetuated.
In many cases, these are vulnerable people who are being exploited because of their vulnerability by unscrupulous individuals who seek to profit from them.
Senator Dasko: So you have communicated with those ethnic communities?
Mr. Blair: Yes, ma’am, very vigorously. We’ve sent delegations to those countries. We’ve also made investments in online information-sharing, because that’s where people get a lot of their information.
Senator Dasko: Do you advertise in their media?
Mr. Blair: Yes, ma’am. If they go online in one of those communities where people might be inclined to consider coming here, we want to make sure that instead of getting the YouTube mythical information that they’re getting factual information.
Senator Dasko: You have some red lights going up?
Mr. Blair: We want to make sure people are making informed decisions. Many of these people are rational actors. If we provide them with accurate information about the true nature of Canada’s immigration system, we have found, for those who are failed claimants, many of them are seeking a better life. They are not in need of our protection, but they are seeking to come to Canada. It’s a great country. People from all over the world would hope to have the opportunity to come here.
We have a very robust immigration system. A big part of the work we’re doing for those who might be called economic migrants rather than refugees is to direct them to how to make an appropriate and lawful application to immigrate properly to Canada as opposed to coming into the system. A lot of that has been dispelling myths and trying to work collaboratively with many of those communities.
We’ve had good cooperation. For example, I’ve gone to consul generals in the United States that represent some of the potential diaspora communities. They were very collaborative with us in helping to ensure their citizens have accurate information so they don’t enter into a system that is not going to lead to a successful outcome for them. We’ve made some very significant progress on that. We’re going to continue with that work.
That’s why, as I referred to earlier, we’re not just making investments on increasing the number of hearings. That’s an important investment, but we also want to make sure that those hearings are available to people who really do need our protection. Part of that is helping redirect people who perhaps don’t need our protection into a more appropriate choice.
Senator Oh: Welcome, minister. After the Prime Minister’s famous tweet that refugees are welcome, we have become a country that is being flooded by refugees coming across the border. I want to quote something the Auditor General recently said:
The surge of claims in 2017 outstripped the government’s capacity to process them within the required timelines, leading to increased wait times. . . .
. . . We project that if the number of new asylum claimants remains steady at around 50,000 per year, the wait time for protection decisions will increase to five years by 2024 . . . .
Minister, given the increased funding and resources to IRB, when does the government believe the current backlog will be clear?
Mr. Blair: Thank you very much for the question, senator. It’s important that we reflect and recall Canada’s long and very proud history of being a country that is open and welcoming to those who flee war and persecution. This is not going back to 2017 but back to Canada’s origins. We have been a country where people have sought refuge and safety. We have been a welcoming country, and Canada has benefited enormously from those immigrants and refugees who have come to Canada. They have made a difference and helped build this country.
When the Prime Minister said that Canada is a welcoming country, it was a statement of our history and of our values as a nation. Frankly, to suggest that tweet was that impactful on what is very clearly a global phenomenon of migration — I mentioned in my earlier remarks that there are 250 million people on the move and 25 million of them are seeking refuge. As we look across the world, countries like Canada — safe countries, countries of prosperity — have been challenged by people seeking safety.
We did see an increase in 2017. There are many well documented and clearly understood reasons why that surge took place.
The Auditor General’s report, which was very helpful, acknowledged the challenge we faced in 2017, but the Auditor General did not have the benefit of knowing about the significant investments we have been making in IRB, for example, to increase their capacity to conduct hearings from 26,000 a year in 2017 to what is now approaching 50,000 a year and he didn’t have the benefit of seeing the excellent work that our officials had done in managing those flows more appropriately and outreach work we have been doing.
Quite frankly, I think our responsibility is to manage that system, uphold Canadian law, and fulfil and live up to our international obligations. We also have a responsibility to continue to reassure Canadians that our values and laws are being upheld and respected, and the system is being well managed. I think that’s reflected in the work that we present in Budget 2019 and the work we did in 2018. I can tell you I had the opportunity to watch firsthand the excellent work of our officials — the dedication, compassion and fairness that they bring to these processes. Canadians, being aware of that, would be proud.
Actually, the Auditor General’s concerns — in anticipation of that, we didn’t need an Auditor General’s report to know we had to do better. We began doing better right away. Our officials have been working tirelessly to increase our capacity.
We’ve seen, as I’ve mentioned, a very significant reduction of people crossing our borders irregularly. It’s important because of Canadians’ sense of fairness. It really is not a safety issue, let me assure you of that; it’s not an issue of safety and security, but it was an issue of fairness for Canadians. We need to reassure Canadians that the system will be managed in a fair way. They also want us to be competent managers of it, and I think we can demonstrate that we’ve brought that level of rigour to the management of the system.
Senator Oh: Can I just follow up?
The Chair: Very quickly, please.
Senator Oh: Minister, if the U.S. is also an immigration country, if refugees keep coming in from the U.S., something is wrong somewhere.
Mr. Blair: Senator, we are blessed in our position in the world. We are surrounded by three oceans and a very good ally in the United States. Frankly, the United States faces many challenges. Somebody asked me recently if the United States is a safe third country. Last year, 95,000 people seeking safety thought so and sought refuge and safety in the United States. In the last 40 years, 3.5 million people have sought and obtained refuge in the United States.
The United States is facing challenges, as are Germany, England, Australia, New Zealand and most European countries. Most developed countries are facing a significant challenge. It’s one of the reasons we embrace and support the UN global migration compact. There is an obligation upon all of us to work collaboratively together to manage the situation in a way that is fair and compassionate.
Senator M. Deacon: You were speaking at the beginning about the use of new equipment. You talk about the RCMP trying to improve its capabilities and investing in new border technology equipment, which is great. I’m just curious what that new border technology equipment might be able to access, determine, help us bring more value, what we’re looking for, what the benefits of that might be first.
Mr. Blair: A couple of things, and I might defer to our officials, particularly the CBSA.
One of the things we know is that information and data could be very helpful in managing these flows, so the collection of biometrics and the sharing of data is appropriate and always respectful of people’s privacy, but there is appropriate sharing of data with those whom we have data-sharing agreements. Those, essentially, are the Five Eyes countries. That could be very significant.
There are also new technologies with respect to identifying individuals as coming and going from the country and who are crossing at irregular points of entry. Technology can be utilized to maintain the security of our borders. That helps us to respond to some of the concerns.
One of the things we’ve been fortunate with in this country — we saw in 2017, for example, a significant number of people coming across the border. It was a relatively new phenomenon. For example, about 1,300 people crossed from the United States into Manitoba, near Emerson. Some appropriate steps had been taken. I was very pleased to see this year, for example, in January that number was reduced to one. In February, another one. In March, four or five.
Great work is being done by our officials to manage that and it’s done much in collaboration, in utilizing better information-sharing and better tools at the border.
Senator M. Deacon: Thank you.
Should I stop?
The Chair: I think you should stop because they’ve been wanting a very quick follow-up? Are you okay with that before we go vote?
Senator M. Deacon: I’m good. No problem.
The Chair: Thank you.
Senator Seidman: I’ll be very quick, minister. It’s interesting because clause 301 of the bill adds a new objective to IRPA. It states:
(f.1) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system;
It’s significant to add a new objective to a piece of legislation. I’d like to know if you can explain to us the significance of that.
Mr. Blair: If I may, I’ll ask the official, the director from IRCC, to assist us.
Mr. Valentine: Thank you, minister.
It’s quite technical in nature. Actually, the clauses being added to add that immigration objective enable clause 304, which is the clause in the bill with respect to providing the authority to the Governor-in-Council to either pause or stop the processing of visas should we have difficulty with countries to whom we want to remove failed claimants. Currently that is a challenge for the Government of Canada. A number of countries around the world do not issue the required travel documents to allow us to effect the removal of a failed asylum claimant.
We are adding into this legislation the ability for the Governor-in-Council to do that, should it choose to do so. For us to do that, we needed to add that objective.
Senator Seidman: I appreciate that. I didn’t realize it was going to be so technical and complicated.
Mr. Blair: Quite frankly, from a non-technical standpoint ensuring and making a commitment to integrity in our Canadian institutions and systems is entirely appropriate.
Senator Omidvar: You talked about fairness. That’s important. It’s also important to stay within the law. Are these changes constitutional? Do they abide by the same decision? Will they be challenged in court?
Mr. Blair: I’ve had a conversation with the Minister of Justice. I’ve been advised that he believes very firmly that these changes are, in fact, constitutional. I will tell you that the consideration of the Singh decision and other related court decisions was very much in the centre of our thinking about ensuring that, prior to removal, any individual who would not have access to the IRB will, because of the new rules, have a hearing. The courts have been very clear the person should have a hearing. They should have the opportunity to be heard. They should have access to legal representation, and that decision should be subject to review by our courts. I believe all of those things make these measures compliant with legal precedent. I believe it is constitutional.
I will also tell you that in my experience in the courts — and I’ve spent most of my life there — everything is challenged, senator.
Senator Omidvar: It will get challenged.
The Chair: On that note, thank you for joining us, Minister.
We will suspend the meeting, but I will ask everyone to please come back as promptly as you can after the vote so we can continue with our last panel.
(The committee suspended.)
(The committee resumed.)
The Chair: Colleagues, we will continue the study of the bill and of Division 16 of Part 4 with our third and final panel for today.
I realize not all of our colleagues have made their way back from the chamber, where we just had a vote, but in order to be efficient, we will begin right away.
Thank you for being here to help us with this study.
From the United Nations High Commissioner for Refugees, we welcome Jean-Nicolas Beuze, representative in Canada. Thank you for being here. From the Canadian Council for Refugees, we welcome, by videoconference, Richard Neil Goldman, member of the Legal Affairs Committee and, from the Canadian Association of Refugee Lawyers, Andrew Brouwer, Vice-President.
We will begin, by video conference, with you, Mr. Goldman.
Richard Neil Goldman, Member, Legal Affairs Committee, Canadian Council for Refugees: Thank you. On behalf of the Canadian Council for Refugees, I thank you for this opportunity to address your committee on this very important matter of refugee rights and, therefore, human rights.
I will make my remarks in English. However, we submitted our brief in both languages. I will then be very happy to answer questions in the language of your choice.
The CCR’s nine-page brief details a number of very serious flaws with the proposed amendments, which I would be very happy to address during the discussion period, but there’s no better illustration than a real-world story. This is taken from an op-ed article I penned, which I believe has been circulated to you as well.
This concerns Reina, which is not her real name, who left her small community in El Salvador after the gangs moved in. A gang member had thrown a bomb into her neighbour’s house, killing four people. Another had shot her brother, who was a former government soldier and, thus, an enemy in the gang’s eyes. The gang warned the rest of the family to depart.
As numerous human rights groups have documented, Raina’s story is typical of the thousands of migrants who have fled the violence of El Salvador to seek asylum in the north. Of course, geography being what it is, anyone hoping to make it to Canada would have to first pass through the United States. That typically means making a refugee claim when intercepted by U.S. officials and then hoping to be released in order to continue on to Canada.
Why wouldn’t Reina just try to obtain asylum in the United States? The answer is that if someone like Reina ever had a fair chance of being granted asylum in the United States, that hope vanished in June 2018 when former U.S. Attorney General Jeff Sessions issued a ruling making it virtually impossible to obtain asylum in the U.S. on the basis of gang-related violence.
Minister Blair, in his earlier testimony, said the U.S. is still a safe country for refugees. With all due respect, it would not have been a safe country for Reina.
Of course, another reason for coming to Canada might be that Reina knows no one in the United States but has a family member in Canada, perhaps an aunt or uncle who came to Canada during the Salvadoran civil war that ended in the early 1990s and who is now well-established in Canada.
Family is of great comfort and assistance to persons arriving with nothing and the U.S.-Canada Safe Third Country Agreement clearly recognizes this by including an exception for family members.
If Reina arrived in Canada today, on May 29, 2019, she would have the right to a hearing before the Immigration and Refugee Board, Canada’s highly regarded independent tribunal tasked with deciding refugee claims. Of course, if the IRB had concluded that Reina’s fears were well-founded, she would be granted asylum.
However, if the proposed amendments that are before your committee were to come into effect, this would all change. Despite Reina’s excellent reason for abandoning her refugee claim — the fact that she would have little or no chance of being granted asylum in the United States based on gang-related violence — she would be denied a hearing at the IRB and instead relegated to the pre-removal risk assessment, or PRRA, a process that provides much less fairness than a hearing before the Immigration and Refugee Board.
It’s important to note that even if Reina had a family member in Canada and was thus admitted at an official port of entry under an exception to the Safe Third Country Agreement, she would still be denied a hearing before the IRB and relegated to the PRRA.
The adoption of these proposed amendments would be like turning back the clock to before 1985, when the Supreme Court ruled in the Singh decision that all refugee claimants have the right to an oral hearing.
The proposed changes are not only unfair to refugees, but they will also hurt and not help efforts to make Canada’s refugee determination system do its job in a timely manner. It will create a parallel determination system requiring a new infrastructure leading to delays and unnecessary costs. It is also likely to be subject to legal challenges, as Minister Blair conceded just a few moments ago in his previous testimony.
It would be far more sensible to increase the capacity of the existing system at the Immigration and Refugee Board, a system that is recognized as one of the best in the world.
The House of Commons Finance Committee has now voted in favour of an amendment to guarantee the right to an oral hearing for all claimants caught by the proposed changes. Unfortunately, the CCR knows, based on our members’ extensive experience with the PRRA that the guarantee of an oral hearing will not remedy the situation. We maintain that the PRRA is so inferior a process as compared with an IRB hearing, and the rights of the PRRA applicants are so compromised that even if the PRRA were to guarantee an oral hearing, it would still be unacceptable to deprive thousands of claimants of an IRB hearing and relegate them to the PRRA.
As our brief details, these problems with the PRRA include the fact that PRRA officers are more junior civil servants than IRB members and do not have access to the same training as IRB members.
No appeal on the merits is possible from a negative PRRA decision, unlike an IRB decision, which can be appealed to the refugee appeal division.
Refused PRRA claimants can be deported while exercising the sole means of contesting their decision, which is an application for a judicial review at the Federal Court.
Unlike the IRB, no mechanism is in place at the PRRA to name designated representatives for unaccompanied minors or persons unable to understand their legal proceedings.
Persons from moratorium countries — that is, countries to which Canada has suspended removals, such as DRC, Burundi and Iraq — will face long-term limbo as they will not have access to the PRRA since they are not at risk of removal, and thus will not have access to any procedure to obtain protected person status.
Lastly, IRCC does not have the necessary infrastructure to conduct thousands of hearings and it would be a needless duplication to create that from scratch rather than continuing to enhance the capacity of the IRB which, as Minister Blair mentioned in his earlier testimony, is already approaching 50,000 cases per year.
Until the tabling of this bill, Canadians could be proud that their government had generally responded in a principled and rights-based way to the recent, and likely temporary, increase in the number of refugee claimants arriving in Canada. With this proposal, Canada would shamefully be joining too many other countries who respond to increased numbers of refugees not by matching capacity to needs but by closing the door on people fleeing rights abuses.
The Chair: Thank you.
Jean-Nicolas Beuze, Representative in Canada, United Nations High Commissioner for Refugees: Thank you for the opportunity to discuss the proposed changes that are contemplated or outlined in the Budget Implementation Act.
While the number of asylum seekers arriving in Canada increased over the last two years, as we have heard, I have previously noted that measures taken by the government have maintained access to asylum in a humane and efficient manner with adequate security checks.
UNHCR, however, recognizes that governments, including the Government of Canada, must strike a balance between managing migration flows, ensuring border security and maintaining public confidence in asylum and immigration systems. We have seen a shift in the public opinion and in the narrative of both certain politicians but also certain media.
In this context, onward movements of asylum seekers from countries like the United States may be perceived by the general public as a misuse of asylum. It is therefore legitimate for governments to take measures to address such concerns and find ways to triage cases to ensure fair, efficient and robust processes in a timely manner. In doing so, they must abide by their international obligation to grant refuge to those at risk of persecution.
In this respect, we welcome the investments to Canada’s asylum system in the 2019 budget and the capacity of the IRB to process 50,000 cases, which has been the average over the last two years.
Under the proposed changes, certain individuals who have made a claim in another country, particularly the U.S. or, eventually, the U.K., will be barred from having their case heard by the IRB. However, they will not be barred from claiming asylum in Canada. They can still claim asylum in Canada but they will be moved to another channel, which is called the pre-removal risk assessment, or the PRRA, which has been discussed today.
In this respect, we have to acknowledge that the PRRA provides the same objective as the refugee process at the IRB. It is based on the same grounds and confers the same degree of refugee protection. In other words, the same definition will be applied to assess whether someone is in need of protection in Canada because of risks they may face in their country of origin.
In that respect, we can expect Reina, the case that was presented by the friend from CCR, will be assessed for the fear that she has or the persecution she has been subjected to by the communal gangs in Central America and not having received the protection of the state to the same extent based on the same jurisprudence as the IRB.
What ultimately matters here is that every case is to be fully assessed on the merits and that no individual, including Reina, is forcibly returned to a country where he or she will be at risk of torture or persecution.
One thing that was not mentioned in the statement from the CCR is that there have been some changes earlier this year. UNHCR is very pleased with the amendment to the bill that the government introduced and that the house Finance Committee adopted earlier this week. They entrenched in legislation the right to a PRRA oral hearing for those concerned by the new measures. That’s exactly what Minister Blair clarified a moment ago. That’s what he had stated in the Committee on Immigration and Citizenship a few weeks ago.
This amendment actually reflects the assurances previously received by UNHCR from the government for an enhanced PRRA, through which no one will be removed without due process. This notably includes the right to a hearing prior to removal and to have one’s fear of persecution fully presented and considered. We have to know that this is in line with Canadian and international jurisprudence. I would, therefore, urge senators to similarly support this amendment, which firmly guarantees an important aspect of due process.
Moving forward, we need to ensure that protection safeguards which are built into the process are fully utilized, including through the adoption of policies ensuring procedural fairness guarantees. In order to further ensure procedural fairness, asylum seekers falling within this new stream will need to have access to fulsome information about the PRRA process, effective language interpretation and access to counsel.
Similarly, on the other side, PRRA officers will have to be trained further specifically on previous jurisprudence from the IRB so they can match the jurisprudence from the IRB because again it’s the same definition of whether you’re considered a refugee in Canada, and how to conduct individual oral hearings in a fair and efficient manner, including — and it’s very important — by ensuring that counsel can play their role fully through interventions during the course of the hearing.
UNHCR has long supported Canada’s refugee adjudication model and the IRB, the Immigration and Refugee Board, and its independence as a model. At the same time, UNHCR recognizes that finding ways to increase efficiency through better triaging and streamlining of processes while upholding access to fair procedures are legitimate objectives. Asylum systems must, at times, be flexible to address changes in the pattern — not only the number, but the pattern and profile of asylum seekers, to remain fair, cost-effective and efficient.
This is the way we guarantee the public confidence in the integrity of the asylum system and consequently of the immigration system. We need to ensure that at the end of the day nobody is being returned to a place where he or she may face persecution or torture. We believe that in making this amendment, Canada upholds its international obligations.
Andrew Brouwer, Vice President, Canadian Association of Refugee Lawyers: Thank you very much, Madam Chair and senators.
I am here on behalf of the Canadian Association of Refugee Lawyers. We are 365 refugee lawyers and professors of refugee law across Canada, and we’re here to ask this chamber to reject the proposed changes to the Immigration and Refugee Protection Act that are contained in the Budget Implementation Act.
If passed, the measures that are included in the budget act risk exposing vulnerable refugees, including women fleeing domestic violence and members of LGBTQ+ communities, access to protection from persecution.
That risk of denial of access and of return to persecution flows from the lack of procedural protections that are contained in the PRRA process, both the PRRA process as it exists now and the PRRA process as may be amended pursuant to the Finance Committee’s change.
It’s important to look at the facts, how the system actually works. The proposed ineligibility provision applies to anyone who has made a claim in one of the Five Eyes countries. Primarily, of course, we’re talking about those who made a claim in the U.S. It is not limited to those who have made a claim and been refused. That includes women fleeing domestic violence, like Reina, who are being denied refugee protection in the U.S. because of draconian asylum policies being imposed by the Trump administration there, as well as to persons — sorry, more like Reina who are fleeing gang violence, particularly in Central America.
They will be denied access to Canada’s independent tribunal, the IRB, and will instead have their claims assessed by pre-removal risk assessment officers who work for the minister.
Despite what we just heard from the government a few minutes ago, PRRA officers are not institutionally independent from the minister. While they exercise delegated authority to decide pre-removal risk assessments, they do so subject to policies and instructions from the department and the minister. It is crucially important to recognize this distinction from the IRB.
PRRA officers are already empowered to conduct so-called hearings, but they are more accurately called interviews in the way the system is currently structured. We’ve seen no indication that system is going to change.
As it stands right now under the Immigration and Refugee Protection Act and associated regulations — and these are not being changed — as well as the rules and instructions given to PRRA officers, these interviews or PRRA hearings are not for the adjudication of a claim. They are interviews where the PRRA officer is authorized to ask questions of the refugee claimant.
PRRA interviews bear none of the hallmarks of what makes up a fair tribunal hearing. Claimants and counsel are not allowed to present the case as they see fit, but are there to respond only to issues raised by the PRRA officer. They may not call witnesses. They may not cross-examine witnesses. There is no process at all for cross-examination.
The amendments that were passed in the Finance Committee yesterday extend these PRRA interviews, or hearings, to everybody affected by the provision, but again that doesn’t transform the proceeding into an actual hearing. Even if, though, the hearing was somehow transformed into an actual tribunal hearing, it wouldn’t resolve the problem of the lack of independence of the decision maker. Nor would it remedy the lack of an appeal on the merits of a negative PRRA decision. As Senator Omidvar observed earlier, a mistake in refugee determination can be a death sentence.
Let’s be clear here. As Minister Blair just confirmed, those whose PRRA applications are refused under this process are not going back to the country where they had previously started a refugee claim. They’re going back to the countries that they fled.
While refused PRRA applicants, if they have counsel, can ask the Federal Court to review the negative decision, judicial review in the Federal Court is no substitute for an appeal on the merits. If it were, Canada never would have established the RAD, the Refugee Appeal Division, in the first place, a measure I should note was strongly supported by UNHCR at that time.
You have just heard from representatives of the government whose message is: Don’t worry, trust us, there will be an adequate process for those affected. But in our submission, assurances from the government are no substitute for the rule of law.
You have also heard from UNHCR that notwithstanding having previously warned Parliament here against using PRRAs as a substitute for the IRB back in 2001 and despite having previously opposed scaling back established procedural rights back in 2012, they now give their blessing to exactly these measures.
As lawyers who study and practise refugee law in this country and who have been doing so for decades, we are frankly dismayed by UNHCR’s support for this proposed rollback of refugee protection in Canada. But at the end of the day, it is, of course, for the Canadian legislature to decide what Canadian law and Canadian values require when confronted with vulnerable persons seeking protection. UNHCR’s view that the convention allows for less is of limited relevance to the decisions to be made by this committee and by Parliament.
We understand that the government and UNHCR are worried about public support for Canada’s refugee protection system. So are we. But scaling back crucial procedural protections to give the appearance of being tough on some of the most vulnerable members of our community is not, in our submission, an acceptable legislative goal. We urge this chamber to recommend the deletion of this provision.
The Chair: Thank you very much.
I want to stress that we have to leave this room soon. We can push it to 6:35 p.m., but our colleagues will not like us. It gives a very limited time for questions, and I will ask your cooperation to be precise and concise.
Senator Seidman: There’s no question that we have a complex bill embedded in the budget bill, and that creates a huge problem for us. It’s a budget bill. It leaves us very few options.
I’d like to go to the PRRA process, if I might, because, Mr. Beuze, you said something somewhat different from what we heard from Mr. Brouwer and Mr. Goldman. However, you did talk about protection safeguards that need to be built into the PRRA process. So what I’d like to know is what you think those safeguards could be. How could we ensure that it’s a humane, effective process and that people don’t end up back in their home countries being tortured or worse?
I don’t know what to say about that. The minister was very confident that people would not end up in that situation, because he felt the PRRA process would be humane and effective.
Try to help me with this a bit. I might start with you, Mr. Beuze, if I can.
Mr. Beuze: To start with an important note, the PRRA system already exists for a number of asylum seekers who arrived in Canada and who are not entitled to a hearing before the IRB, so it’s not something new. Already, as we speak, a number of people are going through this process.
I hate using statistics, but I will still do it here. When the PRRA is a first-instance decision making, 30 per cent of them are recognized as refugees — 30 per cent.
So the second point is that we need to ensure proper training for new PRRA officers and for those already on the job to ensure that they are trained on jurisprudence from the IRB and Federal Court so that there is no appeal judicial appeal at the Federal Court level, which will delay things and cost more to the system. It would also be unfair for the asylum seeker, because they will not get protection. It means, also, probably, doing training on sensitive interviews for specific profiles, women at risk, survivors of torture, gender-based violence or LGBTQ+. It’s all part of training that is already ongoing and which needs to be reinforced.
The main safeguard is really the role that we have all mentioned of the counsel. For the time being, they have a limited role, because they appear at the PRRA often as a last resort after having the RPD, the RAD and Federal Court. It’s a different process, but when it’s a first-instance mechanism, lawyers — counsel — will need to be given the space to present evidence and defend the cases, as they will do before the RPD. That way, the cooperation of the law and counsel holding to account the PRRA officer will be absolutely critical.
Mr. Brouwer: Thank you. We’re an association of refugee lawyers. We recognize or believe that the role of lawyers in these proceedings is critically important, but as currently structured, that role is very narrowly limited. There is nothing in the act, and we have seen no regulations and no new rules, to suggest that’s going to change.
With respect to the 30 per cent acceptance rate for first-instance pre-removal risk-assessment decisions, you need to compare that to the 62 to 65 per cent who are granted it when they get to the IRB. Thirty per cent — yes, that’s almost a third, but what about that group between the 62 and the 30 per cent who are denied because they are at the PRRA? That’s a serious problem.
Senator M. Deacon: Thank you very much. I’m coming back to you, sir, if you don’t mind. I’m looking at the presentation you did. When you talk in the second part of your statement talking about protection safeguards, initially, you then said: “Similarly, PRRA officers will have to be trained further” — specifically, previous jurisprudence from the IRB on how to conduct individual hearings in a fair and efficient manner — included by ensuring the counsel can play their role fully.
I heard part of this answer to the question my colleague made, but my question on that piece is this: What needs to get better with the interview process and training required for hearings to be conducted more fairly? What is the piece you think will help improve that?
Mr. Beuze: Definitely that the PRRA officers are trained to provide the space and opportunities for the counsel to play an active role in defending the cases. That comes through both ends. Of course, the PRRA officers have to receive, through regulations, instructions to do that, but it’s also the UNHCR’s view that it’s the role of lawyers to demand that if we go into an enhanced PRRA, which has been promised politically by Minister Blair in this committee and other committees, to hold to account the immigration department in terms of their possibility to defend the cases.
I don’t like the statistics issue, because if you really look, the average is at 55 per cent, but if you look at certain profiles — and we will have to dig into those people who will fall in this category — we have a number of countries of origin where it is at 20 per cent or less — 18 per cent for Haiti and 20 per cent for a number of other countries, which may or not be falling within this streamlining.
So that’s why I say I hate using the statistics, because they may induce us into a wrong assessment.
Mr. Brouwer: Again, I recognize that UNHCR is recognizing that there needs to be significant improvement to the process for this to work, but you have before you a bill that will implement this system before any of that is in place. Again, the position of CARL — and I think CCR is similar; we should ask Mr. Goldman — is this is being pushed through with great haste in entirely the inappropriate context, a budget bill. If the government is serious about developing a system that’s going to be more efficient, fair and that’s going to work, recognizing the problems with the system as it exists right now, it’s our position that it needs to be severed from this bill. There should be stand-alone legislation with draft regulations, showing how this would work.
The Chair: Mr. Goldman, do you want to add to that?
Mr. Goldman: The point is that everyone seems to concede that the PRRA is a very inferior procedure right now, and the most optimistic view is that maybe it could be just about as good as the IRB. What is the reason for creating this parallel system? What is the reason for building hearing rooms and for trying to enhance the training of officers when this system already exists? Is it just to save the $30,000 or $40,000 a year difference in salary between an IRB member and a PRRA officer? After all, the construction, training and other developments, I doubt there will be any savings.
If it’s not going to be as good — and the CCR firmly believes everything that has been put forward in terms of the lack of institutional independence and of a true hearing — why are we penalizing people like Reina who, as our representative from the UNHCR admitted, would not have protection in the States and is, therefore, very legitimately seeking protection in Canada?
The Chair: I will ask for one question per senator, because the time is very tight.
Senator Oh: I want to thank you so much, Mr. Beuze, for your work. I had the pleasure of working with you for the last year on the youth group. Thank you for your support.
What is the most important thing you would recommend to help refugees and to screen them properly for youths who come into Canada? What are the best things we can do to help them?
Mr. Brouwer: From our position, it is to use the system that we have and make sure that it’s properly funded, properly resourced and does not bar access to procedures to certain categories of refugee claimants based on what we believe to be completely irrelevant considerations.
This proposal to screen out a whole category of refugee claimants just because they happen to make a claim somewhere else is not an appropriate use of the refugee determination system.
Mr. Beuze: Streamlining cases according to their profile and how they can be best assessed in a cost-efficient and effective manner while upholding a fair principle is what all countries, especially Western countries which have robust refugee determination procedures, are confronted with.
I don’t think that this committee should be under any impression that there is a magic bullet. We have the opportunity to discuss those matters with probably 30 or 40 countries throughout the world. Canada is doing it and taking a lead with a number of Western countries to identify the best ways to streamline so that we keep fairness, keep the confidence of the public and that we don’t end up with massive case law delays and a massive budget.
Mr. Goldman: I’d just like to take issue with the whole expression of streamlining. I don’t understand how creating a parallel system is streamlining anything.
What we’re basically doing is we have a wheel, the IRB, that rolls quite well. We’re not only trying to reinvent the wheel, but we’re taking a cube and trying to round it into a wheel with the hope that maybe it will roll as best as the original wheel. That’s the best analogy I can come up with.
The Chair: Thank you for that.
Senator Omidvar: I have a couple of questions and I would appreciate one person answering because our time is limited.
One of my first principles as I approach this is “thou shalt do no harm,” and clearly that’s not a principle being followed in the bill.
I’m most concerned about the women who will be impacted, and in being practical about this, as Senator Seidman said, this is embedded in the budget bill. The tools at our disposal to do something with this bill are limited.
I’m wondering, Mr. Beuze, if you would recommend an exemption for women who come irregularly to Canada based on claims made for domestic violence, gang violence and female genital mutilation, because these are grounds that are not embedded in other jurisdictions. Should we consider something narrow like that to improve the measure? I know it’s incremental, I know it is, but we have limited capacity here.
Mr. Beuze: Definitely, this is something that we have recommended to a number of countries of looking at different profiles and channelling and streamlining people in relation to their vulnerabilities and with the types of violations they have been subjected to or are fearful of being subjected to.
Women, children and members of the LGBTQ+ community are at risk. Survivors of torture have specific needs which are different from what I will call a regular case, even if there is no regular case in asylum processes. But we can definitely have a list of people who, instead of being channelled through the PRRA, could still be channelled to the RPD, the first-instance decision of the IRB.
Senator Omidvar: Would you provide us with such a list?
Mr. Beuze: We are happy to provide it because that has been a standard recommendation made to many countries, including Canada.
Senator Omidvar: So I wonder, Mr. Brouwer, what you think about that? I know it’s not perfect but —
Mr. Brouwer: Our position continues to be that there is no good reason for this amendment, apart from optics and looking like we’re doing something. From our position, we have one refugee determination system. Bifurcating it and sending some to a system that is so deficient is really unacceptable from a rule of law perspective.
Senator Omidvar: You’re clearly not Robin Seligman, so I’m sorry. That is Mr. Goldman. I’m going to ask the same question as I asked the minister. Is this a backdoor way of undermining the vibrancy of the IRB as the primary system in successive governments, regardless of who they are? Will they use this as a way? Because we know that the public service, for instance, has been agitating for a long time to bring the IRB under public service control. Is this a way to get there?
Mr. Goldman: Is that question for me?
Senator Omidvar: Yes, it is.
Mr. Goldman: I think that’s a very legitimate concern. This could be the canary in the coal mine, so to speak. Now it’s only 3,000 over two years, I think Minister Blair said. Then they might say, “Look, we’ll go for the bare minimum.” Sadly, the UNHCR is saying, rather than suggesting going with the strength of Canada’s system that you can do less and it’s acceptable to do less. Why should we do less? Why should we not be the model and strive to be the model for refugee determination?
The Chair: Thank you very much.
Mr. Beuze: I have a recommendation for Senator Omidvar. We have discussed and recommended an automatic stay of removal when there is a judicial review for those who have had only the PRRA — the first-instance mechanisms — so that when there’s a negative decision at the PRRA level, there is automatically a stay on the removal of that person from Canada pending the judicial review based by the Federal Court.
That will ensure because those people have not gone through RPD rights and the Federal Court, they will stay in the country pending the Federal Court deciding, through a judicial review, whether there was a breach of the law or a bad interpretation of the law.
Senator Omidvar: Does the measure include a review after a certain number of years?
Mr. Beuze: A review by?
Senator Omidvar: A review by IRCC about this new process.
Mr. Beuze: You will have to ask them.
Mr. Brouwer: We have not seen any indication of that.
The Chair: I do want to apologize for rushing you through those questions and answers. Thank you for your cooperation.
If there is anything you feel the need to share with this committee when you get back home, we will welcome anything you want to send our way.
(The committee adjourned.)