THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, May 23, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 11:30 a.m. [ET] to study the subject matter of those elements contained in Divisions 3, 4, 5, 14, 21, 22, 23, 31, 32 and 38 of Part 4 of Bill C-69, an Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024.
Senator Ratna Omidvar (Chair) in the chair.
[Translation]
The Chair: My name is Ratna Omidvar and I am a senator from Ontario.
[English]
I am the Chair of the Standing Senate Committee on Social Affairs, Science and Technology. Welcome to all.
Before we begin, I would like to ask all senators and other in‑person participants to consult the cards on the table for guidelines to prevent audio feedback.
Please take note of the following preventative measures in place to protect the health and safety of all participants, including the interpreters: If possible, ensure that you are seated in a manner that increases the distance between microphones; only use a black approved earpiece — the former grey earpieces are redundant and must no longer be used; keep your earpiece away from the microphone at all times; and when you’re not using the earpiece, please put it face down on the sticker placed on the table for this purpose. Thank you all for your cooperation.
Today, colleagues, we continue our study on the subject matter of those elements contained in Division 38, Part 4 of Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament. This division amends the Immigration and Refugee Protection Act.
Before we begin, I would like to suggest we do a quick round table of introductions, starting with Senator Osler.
Senator Osler: Thank you for being here. I’m Gigi Osler, Manitoba.
[Translation]
Senator Cormier: Good morning. René Cormier from New Brunswick.
[English]
Senator Moodie: Rosemary Moodie, Ontario.
Senator Bernard: Wanda Thomas Bernard, Nova Scotia, the home of the unceded Mi’kmaq territory.
[Translation]
Senator Mégie: Good morning. Marie-Françoise Mégie from Quebec.
[English]
Senator Cuzner: Rodger Cuzner, Nova Scotia.
The Chair: Thank you, colleagues. Our witnesses today are Jason Hollmann, Director General, Asylum Policy Branch — I think we’ve seen you before here; Chris Hamilton, Senior Director, Asylum Policy Branch; and from the Canada Border Services Agency, or CBSA, Richard St Marseille, Director General, Immigration and External Review Policy; and Anders Sorensen, Acting Executive Director, Asylum and Irregular Migration Policy. Thank you so much for joining us today.
I understand Mr. Hollmann and Mr. St Marseille will be making opening remarks today. You may proceed whenever you are ready starting with Mr. Hollmann, five minutes. After Mr. St Marseille speaks, our senators will weigh in with questions. Please proceed.
Jason Hollmann, Director General, Asylum Policy Branch, Immigration, Refugees and Citizenship Canada: Thank you, chair. In fact, we have one set of joint opening remarks.
I would like to thank the committee for inviting us to be part of your study on the budget implementation act. As was mentioned, I’m joined by Chris Hamilton and colleagues from the Canada Border Services Agency. We welcome the opportunity to outline some of the important proposed legislative amendments that will help to facilitate an effective and efficient asylum system in Canada.
Canada’s asylum system reflects our international obligations under the 1951 Refugee Convention and its 1967 Protocol Relating to the Status of Refugees to protect refugees. A well‑managed and efficient asylum system provides protection that is in line with Canada’s international obligations but also supports efforts to keep our country safe and healthy.
Canada is concerned with the scale of forced displacement, globally. We remain committed to ensuring safe migration, to upholding a fair and compassionate refugee protection system and to aiding those in need of protection in the face of historic levels of global displacement.
The in-Canada asylum system has been strained by a surge in asylum claims, leading to lengthy processing times and backlogs, resulting in prolonged uncertainty for applicants.
While a number of measures have been put in place to address the numbers of claims facing the system, including the additional protocol to the Safe Third Country Agreement last spring as well as the visa policy change related to Mexico in February of this year, the system continues to face challenges. This has meant that thousands of claimants are facing long wait times at multiple points in the process.
The proposed legislative measures are aimed at addressing challenges faced by the in-Canada asylum system through the introduction of system-wide efficiencies and enhancements.
[Translation]
These legislative amendments aimed to address systemwide bottlenecks by simplifying and streamlining the claim process in support of enhanced program integrity and faster processing of asylum claims. These changes will make the system faster and make it simpler for applicants. The changes will help to ensure a clear process for applications and one where they only need to tell us their information once.
These changes will require online submission of applications, which will streamline our intake process. Applicants will submit all their information, including the basis of the claim, in one place. IRCC will be able to provide the IRB with that information and a complete package, ready for decision. This supports a client-friendly, tell-us-once approach.
[English]
In the current system, claimants must complete multiple documents as part of their application. In addition, the documents are different depending on whether the claim was made at an official port of entry or an inland office.
The introduction of a more comprehensive processing model with single online applications will promote clients to provide their data in one place and result in operational and program efficiency that allows for all reviews and checks to be completed and only scheduling ready, complete packages sent to the Immigration and Refugee Board of Canada, or IRB. This will ensure that postponements and rescheduling of IRB hearings are minimized and that the IRB can move cases forward in the most expedient way possible.
The legislation will also change the way removal orders are issued. Today, removal orders are issued at the front end of the process to all individuals making a claim. They are just not enforced until the IRB makes a negative decision on a claim. Going forward, removal orders will only be issued after the IRB rejects a refugee claim or declares it withdrawn or abandoned. The amendments would eliminate the time-consuming practice and removal orders would be issued only to claimants whose claims are refused.
Additional changes will also provide the IRB with the authority to require their members to use prescribed tools and formats to render decisions and reasons, again, helping to result in faster decisions received by claimants.
[Translation]
Finally, I would like to point out that these legislative changes are not changing eligibility requirements for claimants. Our objective here is to ensure that a claimant today will receive the same decision after these changes, in the hopes that they receive it faster and with fewer interactions to provide the same information again.
[English]
The government’s goal is to adapt the system to today’s realities and prepare it for tomorrow’s challenges, addressing the volumes, enhancing efficiency and improving service to clients.
I welcome the opportunity to respond to any questions you may have regarding these legislative amendments.
The Chair: Thank you very much, Mr. Hollmann.
Colleagues, you know the drill — questions and answers four minutes each and please indicate which official you would like to answer the question.
Mr. Hollmann, I have a question to you. You stated right at the outset — and we agree — that global forced displacement is at a record high. The Senate Human Rights Committee is, in fact, doing a study on global forced displacement. However, you also said that the objective of the government is not only to be fair and just to vulnerable people but also to be effective and efficient.
My question to you is: Does being effective and efficient compromise the principles of fairness and justice when timelines are collapsed, et cetera? I’m always worried about that.
Mr. Hollmann: Thank you, chair. In fact, the measures that we have proposed before you in the legislation are all designed to address the situation that you are raising.
They are really looking at how we can make the system more efficient, handing off bottlenecks between departments without compromising the fairness or compassion that the system demonstrates. None of the changes are designed to be restrictive. In fact, they are working toward providing better service to claimants and allowing for them to receive their decisions faster.
The Chair: And the speeding up of the process, which I think everyone would welcome including refugee claimants themselves. Would it still allow them for sufficient time to access counsel, which is a great challenge for people in these positions?
Mr. Hollmann: Yes. The initial part of the process will be designed to allow time between the initial intake of the claim — that is, recording somebody’s information and collecting biometrics — from when they need to provide the information in the single online application, which includes their basis of claim. That time period is when they would most likely be consulting counsel. The exact time frames will be determined in the regulations.
The Chair: Perhaps I can return to this question later.
Senator Osler: Thank you to the witnesses for being here today.
I have a two-part question for both CBSA and Immigration, Refugees and Citizenship Canada, or IRCC. First, what are the key performance indicators that the process will be streamlined and that justice will be maintained? Second, do you see any unintended consequences resulting from the proposed changes? Perhaps CBSA first and then IRCC. Performance indicators on whether the process is streamlined and have justice and fairness been maintained?
Richard St Marseille, Director General, Immigration and External Review Policy, Canada Border Services Agency: Thank you for your question. With respect to performance indicators, we have a number that will be identified in the Treasury Board submission process once the legislative amendments have been passed if they do pass.
I’ll focus particularly on the amendments that are most relevant to the CBSA’s role at a port of entry. We have a series of amendments in this package that will defer enforcement of a removal order and issuance of a removal order. There will be performance indicators around streamlining that process, for instance. Today, over 60% to 65% of the claimants actually have successful claims. We will be eliminating the issuance of removal orders for that proportion. They will only be issued once there is a negative decision on the claim. There will be a series of performance indicators around that particular process which is particularly germane to the CBSA’s role with respect to asylum intake.
On the procedural fairness parts, as Mr. Hollmann mentioned, there is a package of minister’s due diligence amendments that will allow for IRCC and CBSA to assemble what we’re calling hearing-ready packages. As part of that, the claimant will have opportunity to consult counsel, there will be procedural fairness aspects in terms of submitting the forms and having a singular system irrespective of where you make your claim so that all claimants have the same process and procedural fairness safeguards irrespective of whether they make a claim at a port of entry or to IRCC within Canada.
Senator Osler: Thank you.
Mr. Hollmann: Thank you for the question. To complement that, we are also developing the results indicators. As I said, if the intent is to make the system faster, we will be tracking the timelines for the different stages in the process. Those are impacted by volumes as well, but that’s part of it.
In terms of the fairness, we have also tried to recognize where there might be some gaps. One of the measures is to allow for designated representatives to be appointed at different stages in the immigration process.
Right now, the Immigration and Refugee Board has those designated representatives for minors and those who don’t understand the process. We have one of the measures that will allow for those representatives to be appointed for other stages such as for pre-removal risk assessment.
[Translation]
Senator Cormier: My question is for IRCC and I will ask it in French.
Over the last few years, the significant increase in the flow of asylum claims highlighted the lack of resources that support organizations are facing. That’s certainly the case in my province, New Brunswick.
To what extent does Budget 2024 consider these organizations’ needs in terms of distributing financial resources? Did the government consult them? Did it plan to increase their funding to meet those significant needs?
Mr. Hollmann: Thank you for the question, senator. I will answer it in English.
[English]
Proposed within the budget is funding of $1.1 billion over three years that is designed to continue the government’s support for interim housing related to the needs of asylum claimants. There are no legislative changes related to those services, but I think the government recognizes the need to cooperate with jurisdictions in ensuring that claimants are supported when they arrive.
[Translation]
Senator Cormier: There are no specific measures to help support organizations, who are doing tremendous work in the provinces and territories?
[English]
Mr. Hollmann: Funding is being allocated. It is listed as part of the Interim Housing Assistance Program. That program provides reimbursement funding to jurisdictions, provinces and municipalities to be able to provide support to asylum claimants in terms of interim housing.
[Translation]
Senator Cormier: I see. Could Bill C-69’s proposed amendments to the Immigration and Refugee Protection Act (IRPA) facilitate the asylum claim process for people from the 2SLGBTQI+ community? For them, producing required documents to support an asylum claim represents a significant challenge, given the risks of being “outed.” What additional obstacles could racialized or marginalized asylum claimants, such as members of the 2SLGBTQI+ community, experience under the new provisions in Division 38 of Bill C-69?
[English]
Mr. Hollmann: The intent behind many of these measures is to make the system easier for claimants. We haven’t introduced measures that should make it more difficult for any particular group. The single online application is actually looking to streamline the information that claimants will need to provide, including combining some of the forms that they need to complete now so that claimants are submitting the information to us only once.
[Translation]
Senator Cormier: Very well.
[English]
Senator Moodie: My questions should probably go to Mr. St Marseille, but you will best decide this.
In May of 2019, the government removed all countries from the designated countries of origin list. What consequences to this action have you already seen? Does the government anticipate any further consequences of repealing section 109.1 of the act beyond those you may have already observed?
Mr. St Marseille: Thank you. My colleague Mr. Hollmann will answer that question.
Mr. Hollmann: Thank you for the question. That measure was declared unconstitutional, which was what was behind the delisting of those countries. The changes proposed now are simply to make sure that the legislative adjustments are made to correspond with the decision that was already made. There shouldn’t be any additional implications.
Senator Moodie: Okay. The second question I think, Mr. Hollmann, is for you.
What consultations were held with various stakeholders that included affected communities to inform the development of the amendments that we see here? How did their feedback inform these amendments if you did make those consultations?
Mr. Hollmann: Yes, we did have some informal discussions with a number of stakeholders, including some who are on the panel following this one, to hear about some of the challenges that we’re facing in the system and some of the suggestions for improvement. We did take those into account as we looked at the changes that are being proposed. We also looked at international examples. Obviously, international systems work very differently, but we tried to find best international practices.
Senator Moodie: Can you state which ones you found for us? Which particular best practices did you identify?
Mr. Hollmann: Yes. Some of the measures, including how we simplify the intake process and try to lighten the process, are based on some of the findings of how other countries are doing the intake of clients.
Senator Moodie: Can you give us the specific countries? Can you name them?
Mr. Hollmann: We reviewed a number of countries and undertook a visit, in particular, to Germany and Switzerland.
Senator Moodie: Thank you.
Senator Bernard: My question is for the CBSA. Division 38 would change the removals process, as was mentioned, in most cases deferring it until after an asylum claim has been rejected.
Could you tell us in which cases would removal orders not be deferred?
Mr. St Marseille: Yes, thank you for your question. The regulations will define the cases. The general principle that we’re intending to develop in the regulations will be subject to public consultation when and if we get to that point.
In terms of the expected work flow, the inadmissibility grounds that are tied directly to a refugee claimant, for instance, include seeking permanent resident status without a permanent resident visa, in some cases misrepresentation or not having proper identity documents. If the only inadmissibilities at play are directly linked to the asylum claim and do not go outside in terms of issues related, for instance, to security, criminality or human rights violations, then the removal order will not be issued until after there is a determination on the claim. The removal orders will continue to be issued with respect to people who have inadmissibilities related to those other grounds, the serious grounds.
Senator Bernard: Thank you. I would like to have a bit more information about the situation regarding minors. Can you tell us a bit more about the current situation and the rationale behind designating a representative for minors? How are minors dealt with now and what’s led to the change?
Mr. Hollmann: I think the situation now is a bit grey in terms of what level of support they may be receiving. We’re trying to ensure that it’s clarified in the legislation that minors and those who don’t understand the process would have access to the designated representative at different stages of the process so that we can also follow the same type of approach that the Immigration and Refugee Board is doing. Ideally, as we work through that in the regulatory process, we would strive to find situations where the person could also maintain the same designated representative as they follow the asylum continuum.
Senator Bernard: How are minors handled now? You’re saying that it’s a grey area, but what does that mean? Can you tell us a bit more about that, please?
Mr. Hollmann: Yes. I will have to get back to you specifically on that. It’s sort of a front-line, operational question as opposed to where my area of expertise lies.
Senator Bernard: Okay. Thank you.
Senator McPhedran: Thank you to the officials for being with us. If I may just note for the record that if we return to this bill after a pre-study, if we could consider the advantages of having the advocates for refugees speaking to us before we have the officials with us? If that’s possible, I think that could potentially be helpful.
My question comes from fairly extensive experience with emergency evacuations mostly of Afghan women at risk in 2021. I want to know about your interpretation of these proposed amendments in terms of the online application. What happens when it’s truly impossible to come online? Many of the women that we were able to evacuate had no capacity to go online because it would have undoubtedly endangered their lives even more than they were already in danger. Everything was destroyed because of the raids that were going on.
What about situations where they are strong potential claimants for refugee status and asylum status and they can’t apply online?
Mr. Hollmann: Thank you for the question. When the online application is completed, people are already in Canada. They have already gone through the port of entry and would have done an initial part of the process before completing the application, so there should be additional access for many people in Canada. That said, for those who are not able to complete the online application, there are provisions to allow for the applications to be completed on paper.
Senator McPhedran: Doesn’t that tell us that only people who are in Canada can begin their application online or otherwise? I would like to believe that a version of Afghanistan won’t happen again. However, I don’t think that’s either a practical or a realistic expectation. What are the provisions for people that do meet our criteria and are not in a position to get to Canada in that moment or even get online?
Mr. Hollmann: Other immigration programs are designed to offer responses to international crises. In particular, Canada’s refugee Resettlement Assistance Program is designed to work with organizations abroad and bring refugees to Canada. The asylum system is designed to support those who are already in Canada and would like to file a claim for protection.
Senator McPhedran: If I’m understanding your answer, the substantive amendments that are being proposed are not related in any way to people outside Canada?
Mr. Hollmann: Correct.
The Chair: At this committee — and I would suspect most Canadians are too — we are concerned about the growing backlog. Will these amendments and these measures reduce the backlog significantly or insignificantly? To what extent will processing times for asylum seekers be reduced? It’s all about the timing, it seems.
Mr. Hollmann: The intent behind these measures is to streamline the system as it is today and simplify it to allow us to move faster in rendering final decisions to clients. However, the ability to do that will also be impacted by the volumes that will be coming in. It’s difficult to give a precise answer, but the real intent — that is, if you were to look at those measures being applied to the number of people in the system today and the volumes arriving today — will make for a faster system for those in it and a reduction in the backlogs that currently exist.
The Chair: Mr. Hollmann, what does the backlog stand at today?
Mr. Hollmann: The claim volumes have been growing. Last year, Canada received 144,000 asylum claims. In terms of the initial eligibility determination, the inventory is around 34,000. Although it falls under the Immigration and Refugee Board, my understanding is their inventory for decision is around 180,000.
The Chair: Good God. Okay. You’re not the IRB so you can’t tell us how stale dated some of these applications are?
Mr. Hollmann: Correct.
The Chair: Okay. We will have to save that for another study.
[Translation]
Senator Cormier: I’d like to come back to the issue of resources for support organizations. I understand that the influx of arrivals is too high, and Canada is unable to process it adequately. Simplifying the process is one idea. However, I’m wondering — and I’m not sure I got a clear answer from you, Mr. Hollman — how this bill makes provisions for support organizations’ needs.
I’ll give you an example from a year ago, which is nonetheless a reality. When there was an influx of arrivals, people were sent out to provinces and territories. In New Brunswick, there was an appalling situation where IRCC left a woman in a Moncton hotel room with no support. Provincial and territorial resources, as well as local resources in this case, were not enough. Isn’t that part of the problem? Did the federal government take that into account when developing these amendments?
[English]
Mr. Hollmann: The support for asylum claimants, typically the role of the federal government has been to ensure that claimants receive interim federal health, that we provide access to legal aid and we provide work permits so that claimants can support themselves while their claim is pending.
The other support services are traditionally offered by other jurisdictions. The government has been providing interim housing support since 2017 as an additional contribution given the volumes that are coming and to be able to also help jurisdictions manage the flows that they’re receiving.
[Translation]
Senator Cormier: I understand what you are saying about responsibilities and areas of jurisdiction. However, in this case, there was obviously a coordination challenge between the federal government, provinces and territories to properly receive these asylum seekers. Do you think there’s a challenge in the relationship between the federal government and the provinces in ensuring some degree of consistency when taking steps to receive refugees?
[English]
Mr. Hollmann: We work very hard with all levels of government to ensure that claimants can receive the support that’s provided. As I said, the federal government’s role has typically been in the areas I identified and has been looking at the provision of interim housing. We’re looking at new models, including reception centres as well, but it is a shared jurisdiction, and we would like to be working with all levels of government to ensure that claimants are supported.
[Translation]
Senator Cormier: Thank you.
[English]
The Chair: Just a clarification, Mr. Hollmann. The $1.1 billion for interim housing is an increase?
Mr. Hollmann: Yes. That’s additional funding through the Interim Housing Assistance.
The Chair: What does the whole envelope look like?
Mr. Hollmann: I believe expenses to date are over $700 million.
Senator Moodie: I would like to follow up on the amendment that provides the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness with the power to designate in relation to certain proceedings or applications a representative for persons who are under 18. So that’s specifically what I’m talking about.
How are these representative persons selected? Where are they coming from? Who are these people and the criteria used to select them? How are you going to connect them with these children, these underaged folks? What if there are problems with that selection? What if there is no match? Are these members of families or are they civil servants? Who are these people?
Mr. Hollmann: I think the approach will be defined in the regulations at the time that we’re moving forward with that step. Currently, designated representatives are appointed by decision makers at the Immigration and Refugee Board, and we would be looking to follow a similar approach to what is already being used.
Senator Moodie: Enlighten me. Are these lawyers? Who are these people currently being assigned? Just for my information. I don’t know.
Mr. Hollmann: My understanding is they could be a parent, a family member, a legal guardian.
Senator Moodie: So it could be a family member.
Mr. Hollmann: Or someone who has been identified as well.
Senator Moodie: Somebody connected, perhaps, to that child.
Mr. Hollmann: Yes.
Senator Moodie: Okay. Thank you.
Senator McPhedran: I wasn’t planning to, but I now want to pick up on the questioning of Senator Moodie because I’m concerned about the wording, and I’m hoping you can clarify a bit more about the designation of a representative.
Here is my specific question based on a number of cases where we had children with no parents that we managed to get out of Afghanistan into camps, and then Canada was not accepting the fact that the eldest sibling turned 18. This happened more than once. We were asking that they be designated as the representative for themselves and their younger siblings so that they could be treated as a unit. What became apparent is that discretionary change at the time was being allowed for situations of those who were coming out of Ukraine and were not being allowed for those who were coming out of Afghanistan.
If you could address this, please. Will this fix that situation or will that remain in a discretionary capacity so that we could end up having to face that again where we have an over 18-year-old and, in fact, they get stuck because there is not a recognition of that 18-year-old sibling as a designated representative?
Mr. Hollmann: As we look to develop the regulations to implement that measure, we will be looking at the different examples of situations where designated representatives have been used. Our intent, however, would be for the asylum system itself to, as much as possible, make sure there are similar approaches being used throughout the continuum. That’s why, as I mentioned earlier, we would be looking specifically at how the IRB implements that process today.
Senator McPhedran: May I have your commitment on behalf of your department that this fact situation will be tabled to be addressed?
Mr. Hollmann: I’ve taken note of the challenges that you raised, and we will —
Senator McPhedran: And may I have your commitment that it will become part of the discussion paper for the work that needs to be done on this at the regulatory stage?
Mr. Hollmann: We will definitely take a look at the Ukraine and Afghan situations for designated representatives.
Senator McPhedran: Thank you. I wanted to go to subclause (e), connected to subclause (h), where we’re talking about Division 38 would:
require that certain refugee claimants be authorized to enter and remain in Canada until a final determination is made in respect of their claim;
I’m very interested in the word “require” in that.
Similarly, (h):
require the Refugee Protection Division and the Refugee Appeal Division to suspend certain proceedings respecting a claim for refugee protection if the claimant is not present in Canada;
I just need some feedback on whether I’m understanding the interrelationship between these two subclauses — that this means that, in effect, the seeming requirement that they must always be in Canada, that (e) becomes, in effect, a potential workaround for situations where the process can’t catch up to the emergency, and so they are allowed into Canada until a final determination is made. I just need to know if I’ve understood this correctly. If I haven’t, please do clarify.
Mr. Hollmann: That might be one I’m best placed to take in writing. I wasn’t following exactly the clauses that you were referencing.
Overall, it is an in-Canada asylum system that is available to people once they arrive in Canada, and we want to ensure that during the proceedings, including at the time of the hearing, that the person continues to be in Canada.
Senator McPhedran: Yes. I understand that, but to read paragraph (e) to you again, the effect of it is:
require that certain —
— and it’s not defined —
— refugee claimants be authorized to enter and remain in Canada until a final determination is made in respect of their claim;
Again, I’m interested in the verb “require.” I’m hoping you can help us or help me understand what would actually happen in cases where this requirement would be met.
Mr. St Marseille: Thank you for the question. That’s a nuance related to what we were talking about earlier on the deferred enforcement. We will no longer have removal orders for certain claimants and we will for others. There are a number of technical amendments in there which allow that to happen.
When someone makes a claim, the officer has to let the person in. They will no longer have the removal order process anymore that kind of allows that to happen. The “certain” in quotes is related to those claimants that are subject to that requirement and then the “outside Canada” part of the Refugee Protection Division is to be clear that they don’t have jurisdiction to hear claims when a person is outside of the country. There are two amendments related to that. One, the Immigration Division from an inadmissibility perspective; and, two, the Refugee Protection Division from a refugee determination perspective. It’s just to make it clear and explicit that jurisdiction of the IRB is for cases physically present in Canada.
Senator McPhedran: It’s just very interesting also that the verb is “require” when this would seem to be a highly discretionary process.
Mr. St Marseille: For a refugee claimant?
Senator McPhedran: For the department and the minister.
Mr. St Marseille: It’s to reflect the international obligations to allow refugee claimants to enter Canada. They would be required to be allowed to enter Canada to have their claim heard.
[Translation]
Senator Mégie: Thank you to the witnesses for being with us today.
I heard you say earlier that proposed amendments to Division 38 for shortening timelines and making the system more effective and efficient will apply to new asylum claims and some backlogged cases.
Will that also have an effect on backlogged cases or those managed by Mexico? Because you know that the representative for IRCC…. We know that the department’s office in Mexico manages all the cases coming from Haiti.
Could this change apply to those cases as well?
[English]
Mr. Hollmann: Thank you for the question. When you’re referring to the Haiti files being processed by the Mexico office, you’re referring to regular immigration applications or temporary resident visa applications. In this case, because we are talking about the asylum claimants who would have arrived in Canada and filed a claim in Canada, that process occurs only in Canada either at a port of entry or at an inland office.
The measures would apply to new applicants in the sense that those existing applicants in the system would not need to resubmit their information, for example, just because we’re creating a single online application. Their existing applications would continue in the process. However, if there are measures that would benefit the claimants in terms of changes in the process at other stages, then they would benefit from those changes as we implement them.
[Translation]
Senator Mégie: If I understand correctly, we’re talking about those in Canada and those who applied in Canada. So, all the backlogged cases at other IRCC points of service don’t count? There won’t be any action on that?
Mr. Hollmann: They can apply to different programs outside the asylum system.
Senator Mégie: I see; there’s no connection, even when they are asylum seekers?
Mr. Hollmann: We don’t have any asylum seekers outside Canada. The asylum system is intended only for those who are already in Canada.
Senator Mégie: Thank you.
[English]
Senator Burey: Thank you for being here. My question is regarding Division 38, Part 4, paragraph (c) which refers to the determination of abandonment of claims during certain circumstances.
First, I want to understand what the situation is now regarding how that is determined. Second, what would this provision change? Third, what measures or policies, if any, are currently being considered to prevent arbitrary determination of abandonment?
Mr. Hollmann: Currently, claims are determined abandoned or withdrawn at the Immigration and Refugee Board, and there are procedures for doing that. The change that we are implementing is to allow for those decisions to be reviewed earlier in the process. One of the measures that we spoke about earlier was to ensure that the Immigration and Refugee Board is receiving complete packages that are effectively here and ready for them to proceed in deciding a claim. That may mean that there are claims that people may wish to withdraw before they are referred to the Immigration and Refugee Board. We do not have a mechanism right now to allow for that. In this case, we have adjusted for that to allow someone to withdraw their claim earlier in the process.
Senator Burey: If I’m understanding you correctly, it only refers to the withdrawal of claims?
Mr. Hollmann: As well as the abandonment of claims. Should someone not comply with completing the documentation that’s required, for example, we would define time periods in regulations, and so on, but at some point their claim would need to be declared abandoned should we not receive all of the documentation required, for example.
Senator Burey: Thank you.
Senator Moodie: I’m sorry to do this, Mr. Hollmann, but we must return to paragraphs (e) and (h). I’m struggling a bit with the language here that Senator McPhedran raised before.
I’m struggling with two things: the matchup of the verb “require” in paragraph (e) to be authorized to enter and (h), the requirement to suspend certain proceedings if the claimant is not present in Canada.
These don’t make sense to me because they seem to conflict. One says that you must let the person in until it proceeds; the other says you will not proceed if they’re not here. Perhaps you can help me clarify that because at the level that it’s written, it’s not clear.
The second part is you talk about “certain” refugees and “certain” proceedings. Can you clarify? Who are these certain refugee claimants in paragraph (e), and what are the certain proceedings that you’re referring to in paragraph (h)?
It’s just a clarification of language, I think.
Mr. St Marseille: Thank you for your question. Could you refer me to the specific clause number?
Senator Moodie: It’s paragraphs (e) and (h).
Mr. St Marseille: Is it clause 3 —
Senator Moodie: Section 38, paragraphs (e) and (h). Section 38, Part 4, paragraph (e) and the second phrase is found in paragraph (h). In paragraph (e), you talk about “require that certain,” and I want to know who those certain refugee claimants are, “be authorized to enter.” It sounds as if I present at the border, you must let me in until such time as this occurred.
The second one, paragraph (h), says that these two divisions, protection and appeal, suspend proceedings if you’re not present.
You are saying that you will let refugees in but at the same time you’re saying you will suspend them if they’re not present. Which is it?
The Chair: It’s in the summary of Bill C-69.
Senator Moodie: It’s in the bill. I’m looking at the bill.
Mr. Hollmann: For us, we were Part 4, Division 38 but the amendments are numbered 300 and onward. There are many paragraphs (e) and (h) in the clauses.
The Chair: Just for clarification.
Senator Moodie: This is Division 38, Part 4.
Mr. Hollmann: I guess the document that we have is the more detailed version compared to the version you have.
Senator Moodie: If you want to continue, Madam Chair, I will find it.
The Chair: I will continue while this conversation settles a little. Colleagues — my remarks are to my colleagues — this discussion clearly shows that substantive amendments to the refugee claims process in the budget implementation act lack transparency and we’re unable to do the work as we should normally do. Perhaps that goes in the observations.
I go back to my first question on compromising efficiency with fairness and justice. So we have new timelines, but they’re not known yet because consultations and regulations have to be developed. There are swift and mandatory referrals for abandonment. There are mandatory and as yet unknown conditions. There are deemed inadmissibility and automatic removal orders. Will this not result in the most vulnerable people falling through the cracks?
Mr. St Marseille: Thank you, chair, for the question. With respect to the inadmissibility grounds, in terms of the current process today, those are inadmissibility grounds that as a part of the regular process today, officers already apply those inadmissibility grounds. That’s the basis upon which the conditional removal order for refugee claimants is issued. So it’s not adding any new grounds of inadmissibility. It’s not adding anything new in terms of what would be applied to a refugee claimant from an inadmissibility perspective beyond what is already standard practice today in the current law. What it’s doing is just codifying what the existing process is to make it more straightforward and streamlined instead of it being a bit more ambiguous in law today.
Now that we have the more detailed document that you were referring to, I could go back to the senator’s question.
Thank you. This is a summary document. If you refer to the actual clauses of the bill, one point, there is no interrelationship between the two paragraphs you were mentioning; they’re completely separate provisions in the bill. So if you look at (e), that cross-references to clause 389. So when we’re talking about the surge in refugee claimants, the reason we had to design the law in that way was to account for the fact that removal order is no longer issued and we won’t have a conditional removal order issued at the time of making a claim any more. So we need a way in law to allow the claimants to come in because they will no longer have that conditional removal order that accompanies them when they’re brought into the system. That addresses (e), that’s the certain.
So for the claimants that don’t qualify for that new streamlined process, they have more serious inadmissibility grounds, it’s the status quo process that will exist today. So they’ll still be allowed in, but the law won’t dictate that we must let them in because they’re going to have the conditional removal order. They’re going to have the inadmissibility grounds that are not relevant to the asylum claim necessarily that are also applied. So that’s the reason for that language.
There is no bar on allowing a claimant to come in under the proposed amendments. The requirement to allow them to come in is just to clarify and allow for them to come in because they will no longer be issued an enforcement action at the time of entry, so it’s a facilitative measure.
With respect to (h), that refers to clause 411. In clause 411, that’s just to clarify the jurisdiction of the Refugee Protection Division is only when a claimant is physically present in Canada. If the claimant leaves, there is a suspension authority because they can’t hear them when the person is not physically present in the country.
Senator Moodie: Thank you.
The Chair: The last question goes to Senator McPhedran.
Senator McPhedran: This is more of an operational question. We saw it with Syria. We saw it with Afghanistan. We saw it with Ukraine. That is, within the department there were special teams assembled, essentially a kind of rapid response team.
Do any of these changes move us to a permanent rapid response team so that the ramping up, gathering people, pulling them off assignments and bringing them from other countries, all that we’ve seen in these previous recent examples where the teams were assembled — please correct me if I didn’t see that correctly — but that’s what I perceived in all three of those situations. In order to respond to asylum refugee claimants and in order to try — to Senator Omidvar’s point — not to take the easy route and leave the most vulnerable because they’re often also the most complex, what is happening within the department for a capacity-building, rapid response readiness that is available like that instead of what we’ve seen in the past?
Mr. Hollmann: Thank you for the question. I think the situation you’re pointing to is again the government’s ability to respond to international crises. There are discussions under way to look at our past responses to those crises and a way forward.
In relation, though, to the measures that we have before us, again, they are about improving our ability to provide protection to those who are already in Canada through the asylum system, and part of that is the work to streamline that the system to simplify things for clients so that they can have a faster decision and receive that certainty for their way forward.
Senator McPhedran: Thank you. But with respect, I think that’s a pretty narrow interpretation of what we’re seeing before us. If we’re looking at subsection (e), we see a situation where they are actually being brought into Canada. So my question is relevant because the capacity of the department and really my question is directed as much to the department as it is to the government per se, because the actualization is at the department level. So the lack of a rapid response capacity and a rapid response team that’s ready to go immediately would affect potentially these kinds of claims as well because there has to be a process to determine that these people are going to be allowed into the country until a final determination, and it would seem it would have to reasonably be a rapid response capacity on the part of the department.
Mr. Hollmann: In the context of the in-Canada asylum system, the government does not play a role in terms of bringing people directly to Canada. The system is there to provide protection to those who already are in Canada.
The Chair: Thank you very much, Senator McPhedran. Thank you, colleagues, for being with us today. You can kind of sense that we’re not completely happy where we sit. We may have to get back to you on certain matters, but in the meantime, I want to thank you for your presence here and helping us understand these budget measures.
For our second panel, we welcome witnesses both by video conference and in person. Representing the Canadian Association of Refugee Lawyers, Aviva Basman, President; and Amanda Aziz, Co-Chair, Advocacy. Representing the FCJ Refugee Centre by video conference, Sharry Aiken, President. On behalf of the UNHCR in Canada, Azadeh Tamjeedi, Senior Legal Officer and Head of Protection Unit; and Sarah Marinier Doucet, Associate Legal Officer.
Thank you so much for being with us today. We will begin with opening marks from Ms. Basman, followed by Ms. Aiken and then Ms. Tamjeedi. Each one of you will have five minutes, and we will follow that up with questions.
Ms. Basman.
Aviva Basman, President, Canadian Association of Refugee Lawyers: Good afternoon. On behalf of the Canadian Association of Refugee Lawyers, or CARL, we thank you for the opportunity to address this committee.
We have three primary concerns to highlight this afternoon and will be providing a more detailed brief in the coming days.
First, making substantial amendments to the refugee claim process in the budget implementation act lacks transparency and prevents meaningful study and consultation. In light of accelerated timelines in which the budget implementation act is proceeding through Parliament, there is inadequate time for meaningful stakeholder consultation, as you have already noted, or proper legislative study of these changes.
In addition, the full impact of the changes remains opaque as important details will be made clear only in regulations that have not yet been introduced.
Parliament is being asked to pass a bill without understanding its full impact on refugees and migrants, and civil society is prevented from meaningful engagement, owing to both the expedited timelines and absence of important details.
CARL is therefore recommending that Division 38 be sent for study to the House Standing Committee on Citizenship and Immigration and that it be voted on separately from the budget. In addition, CARL is recommending that regulations be tabled at the same time to ensure a full and meaningful study of the impact of changes.
We welcome efforts to simplify refugee claims. However, with respect to streamlining the refugee claim process, a simplified and streamlined process must nevertheless ensure sufficient timelines and retain flexibility to accommodate vulnerable individuals. An efficient and fair refugee claim process must include a claimant’s ability to access qualified counsel and sufficient time to provide relevant, accurate and complete information when they are submitting their claim. Where claimants do not have access to qualified counsel and are compelled to submit information and documents without a full understanding of the process, there is an increased risk of improper refusal and, indeed, return to persecution or torture.
In addition, proposed changes to the refugee claim process have the potential to disproportionately disadvantage already vulnerable migrants, including those living with mental health disabilities, past trauma or housing insecurity. New and as yet unknown time limits, coupled with potentially swift and mandatory referrals for abandonment proceedings, mandatory and as yet unknown conditions and deemed inadmissibility and automatic removal orders will result in people falling through the cracks.
It can be challenging to get the balance right. As such, CARL emphasizes the importance of meaningful consultation about proposed time frames. In addition, in order to ensure flexibility, we are recommending that reference to mandatory conditions be removed and that mandatory referrals to abandonment proceedings be replaced with discretionary referrals.
Our third point is that any extension of the designated representative regime must focus on supportive decision making instead of substituted decision making.
Designated representatives are an important support during immigration and refugee proceedings. They ensure that minors and individuals who are not able to fully appreciate proceedings can access and meaningfully participate in hearings and applications that impact their rights.
The budget implementation act includes provisions that will permit both ministers to designate representatives. Currently, the amended provisions contemplate the power of substituted decision making. That is where one person makes decisions on behalf of another person. By contrast, supported decision making ensures that individuals who need it are provided the resources and supports needed to participate in these fundamental decisions that impact their lives.
It would be anathema to individual constitutional rights and Canada’s international obligations if new legislation were to permit substituted decision making that negates an individual’s ability to meaningfully participate in proceedings that will impact their claims for protection and, in fact, may result in expedited removals. We are therefore recommending that the budget implementation act delete reference to substituted decision making and explicitly reference supported decision making.
In conclusion, ensuring meaningful access to the refugee claim process is core to Canada’s constitutional and international obligations, and it is important that when changes are made, they are subject to proper study and consultation.
Thank you. My colleague, Amanda Aziz, and I will be happy to take any questions.
The Chair: Thank you very much.
Ms. Aiken.
Sharry Aiken, President, FCJ Refugee Centre: Thank you for the opportunity to address you today.
For more than 30 years, the FCJ Refugee Centre has established itself as a leading provider of wide-ranging holistic settlement and integration support for all uprooted people.
The centre’s daily work includes providing summary advice and information to refugee claimants, helping claimants navigate the process of applying for legal aid, finding counsel and, to a more limited extent, direct representation by our own staff lawyer. The centre also provides transitional housing for women and children.
At the outset, we acknowledge that Canada received a record number of protection claims last year in line with overall displacement flows internationally.
It is important for this committee to ensure that statistics are understood in perspective. The Immigration and Refugee Board’s intake is well under a third of Canada’s overall immigration intake and a tiny fraction of displacement worldwide.
The centre’s overarching concern here is the government is proposing new legal tools for what might be resolved operationally with existing tools. These amendments as CARL underscored, risk undermining important guardrails in Canadian asylum procedures, exacerbate precarity and legal limbo for vulnerable persons and risk refoulement contrary to Canada’s domestic and international obligations.
The centre is a member organization of the Canadian Council for Refugees, or CCR, and endorses the CCR’s forthcoming brief which the committee will receive next week through submission, but we have four other concerns to highlight for you today.
First, senators are being asked to approve significant changes to refugee protection procedures without knowing what the process will look like and whether there will be adequate safeguards to ensure that refugees are protected. The important details on how the proposed changes will actually impact refugees will be included in regulations that the public hasn’t seen.
Accordingly, we ask that the government to table the proposed regulations now and, in line with the recommendation you just heard from CARL, that hearings and a meaningful opportunity for input be convened by the House Standing Committee on Citizenship and Immigration.
Second, the centre is also concerned that proposed streamlining measures proposed in the interest of efficiency will actually produce the opposite result. The new gap between the eligibility and referral stages of refugee determination is likely to lead to backlogs and long delays for some claimants. Here is an example, claimants whose front-end security screening, or FESS, is delayed could be in indefinite limbo. While waiting for referral, individuals will not be able to serve as an anchor relative for family members seeking to enter Canada from the United States.
At the same time, many claimants are likely to fall into breach if there are plans to accelerate the timelines for submission of all required information to the portal.
Both of these concerns must be addressed with the introduction of appropriate timelines in regulations. Our recommendation is that the regulations must provide sufficient time on the front end to ensure claimants have adequate time to access counsel. Also, there must be flexibility for claimants, who through no fault of their own, miss a deadline.
Conversely, regulations must set a transparent deadline for the government’s opportunity to consider the information and documents, failing which, eligible claims will be deemed referred to the Refugee Protection Division as is the case now.
Our third submission, relatedly, is that FCJ Refugee Centre is concerned that the aforementioned amendments will result in an unwieldy and unnecessary increase in abandonment proceedings and more precarity for vulnerable claimants in the face of simple mix-ups, for example, not receiving a notice to appear due to a change of address reported after the notice was issued. These are common occurrences in the lives of newly arrived claimants who struggle to find adequate supports in their first weeks in Canada.
As proposed, the minister is required to refer every missed deadline or failure to appear. Our recommendation is that, at a minimum, the text of section 102 in the budget implementation act be changed from the minister “must” to the minister “may,” the discretion my colleague underscored being consistent with the current framing of the IRB’s own process for abandonment.
Our fourth and final point, the centre has serious concerns about the inclusion of new provisions in the budget implementation act concerning designated foreign nationals, measures introduced in 2012 by the former Conservative government in an unwarranted panic about refugees fleeing war-torn Sri Lanka.
The designated foreign national regime imposes mandatory, automatic detention on designated claimants, denies access to the Refugee Appeal Division for unsuccessful claimants and bars successful claimants from applying for permanent residence and family reunification for five years.
While the budget implementation act amendments may be relatively minor, technical tweaks — it’s hard to tell at this point — the inclusion of this category of the Immigration and Refugee Protection Act itself is deeply problematic and contrary to the values of equal justice and the Charter of Rights and Freedoms.
Accordingly, the centre recommends that all references to designated foreign nationals be eliminated entirely from the Immigration and Refugee Protection Act and that deletions of references in the Immigration and Refugee Protection Act to designated foreign nationals should be introduced into the budget implementation act in line with the welcome, but long overdue, repeal of provisions relating to designated countries of origin.
Thank you, and I look forward to your questions.
Azadeh Tamjeedi, Senior Legal Officer and Head of Protection Unit, UN Refugee Agency, in Canada, United Nations High Commissioner for Refugees: Thank you.
Thank you for the opportunity to appear before this committee regarding the proposed changes to Canada’s asylum system as outlined in Bill C-69.
As the UN agency serving refugees and asylum seekers in 134 countries and territories, providing technical advice on building a strong asylum system is an integral part of our advisory role worldwide.
I would like to start by providing some context before commenting on the specifics of the budget.
Canada is not unique when it comes to seeing an increase in asylum claims. Ongoing and new conflicts have driven forced displacement to unprecedented levels across the globe. By the end of June 2023, over 110 million people worldwide had been forcibly displaced from their homes due to persecution, conflict, violence and human rights violations. There were more than 1.6 million new asylum applications. Seventy-five per cent of forcibly displaced people were hosted by bordering nations that are low- to middle-income countries, often struggling with their own political, economic and social challenges.
It is important to note that these figures will be revised upwards next month to reflect statistics for all of 2023.
In this global context, this means that for the foreseeable future, Canada may have a higher number of asylum claims than it has traditionally received, although this may be mitigated by our geographic location.
Canada’s asylum system is regarded as a gold standard, and we wish to safeguard that model. Implementing changes that would lessen protections for asylum seekers would send the wrong message to countries currently hosting the majority of the world’s refugees and asylum seekers. Ensuring a strong asylum system that can quickly recognize those in need of protection and refuse those who do not meet the international definition of a refugee should be an important goal of any asylum process.
We recognize the challenges that this entails, but we fully believe that Canada can meet them in a way that ensures that the fundamental right to seek asylum is protected.
Turning to Budget 2024, first, UNHCR welcomes the substantial investments to Canada’s asylum system. This includes support in funding for housing, which has been a challenge for asylum seekers searching for emergency shelter or temporary housing. In addition, we welcome the increased funding to legal aid for refugee law services as an important support for claimants and an investment in the healthy functioning of Canada’s asylum system.
Second, UNHCR notes that much of what is proposed in the budget in terms of changes to the system is dependent on amendments to the Immigration and Refugee Protection Regulations. We cannot provide a fulsome analysis of the legislation without seeing these regulations. However, we are pleased that the spirit of some of our previous recommendations to streamline the eligibility process, the step prior to referral to the IRB, are captured in the proposed legislation. We had recommended that the front-end eligibility process be simplified, particularly by reducing duplicate information provided by claimants in multiple forms and online portals. Streamlining the front end of the asylum process while providing support services and safeguarding the right to procedural fairness may increase efficiency of the system and provide a clearer process for asylum seekers to follow. UNHCR looks forward to providing further guidance on draft regulations.
Finally, we also wanted to welcome the possibility of appointing a designated representative earlier in the asylum process for persons under the age of 18 or persons unable to understand the nature of the proceedings. This has been a long‑standing recommendation of UNHCR.
In conclusion, many of our comments today have focused on statistics, but we want to highlight that we are talking about legislation that will impact people’s lives. A majority of those who claim asylum in Canada are accepted, meaning that they have fled dangerous situations that required Canada’s protection. For this important reason, UNHCR remains committed to working with the Canadian government and civil society to ensure that the new measures are implemented in a manner that is consistent with best practices in international law and build a stronger system that responds to the challenges of the future.
Thank you.
The Chair: Thank you, Ms. Tamjeedi. We will go to questions. Senators, you know the drill.
Let me kick off with a question to Ms. Tamjeedi. We all take some pride in the fact that Canada has a reputation of having the gold standard. However, those who live inside the system, those of us who are Canadians, know that improvements can and must be made. Do you believe that these changes in the budget implementation act enhance the reputation or tarnish it?
Ms. Tamjeedi: It’s difficult for me to comment on that and to answer that question directly given the fact that I have not seen the regulations. The spirit of streamlining the front end of the process is a good goal to have given the complicated process asylum seekers have to follow depending on how they enter the country, but how that is done will be clear in the details of the regulations.
Senator Osler: Thank you to the witnesses for being here today. My question is for the witness from the UN High Commissioner for Refugees.
The committee has heard from the proposed legislative amendments in Division 38 will result in a faster, simpler and streamlined process and will not result in reductions in justice, fairness and transparency in the process for determining inadmissibility or in the refugee determination process.
Would you agree and could you expand on your thoughts on the amendments as they relate to justice, fairness and transparency?
Ms. Tamjeedi: Thank you for the question. As mentioned, it’s a bit difficult to comment given the lack of seeing the regulations. However, on the face of it, everything that has been proposed by the government is in line with international obligations. Different systems in different parts of the world decide to organize their systems in different ways. We’re here to provide technical advice and guidance. If people have access to counsel, if they have access to services, if they are able to present their claim in a timely manner and have time to prepare, that should give sufficient procedural safeguards for an individual to make their claim. If all of that is contemplated in the regulations, then it would be in line with a fair process but an efficient process as well.
Senator Osler: Thank you.
[Translation]
Senator Cormier: I will ask Ms. Basman and Ms. Aiken my questions in French, but anyone who wants to answer them may do so.
I received your proposals, Ms. Basman, in which you described the lack of consultation and transparency. You suggested a referral to a House of Commons committee. With all due respect, I doubt that solution is feasible. Unfortunately, better solutions must be found in the current context.
My question is for you and for Ms. Aiken. What are the possible unexpected consequences that could put some asylum seekers in danger? I’m thinking specifically about people from the 2SLGBTQI+ community who arrive here and make an asylum claim with support from organizations that lack resources. If their claim is refused and they’re sent back to their country, what consequences might there be? I’d like to hear you on that.
[English]
Ms. Aiken: I would be happy to jump in if that’s okay.
Imagine, as a refugee claimant newly arrived in Canada, you have to find housing, a roof over your head. You have to find someone to help you initiate a protection claim, navigate the resources that are available, wait for an appointment and get everything together. You’ve probably moved at least a few times between the day you arrived and the day your documents are due. There are all kinds of hurdles to cross through.
I want to underscore, as you’ve mentioned yourself, the important role that settlement agencies across this country play on the front end with relatively constrained resources and tiny staffs. We play an important role in ensuring access to justice and we’re already over capacity. It’s not just a question of housing, although housing is certainly important, but it’s making sure that people have access to counsel.
The concern, in very concrete terms, is that because of the mandatory language in the budget implementation act — that is, if you miss completing your documentation — it’s go to jail immediately effectively like the Monopoly game. There is no discretion built in to allow for simply missing deadlines. Under the current system, there is flexibility; there is the capacity to redress. With mandatory abandonment hearings, the risk is that individual claimants will end up falling through the cracks and risking return to their countries of origin. Let me underscore here that we’re talking about countries where they will face a very real risk of persecution.
I will now pass the floor over to my colleague Ms. Basman.
Senator Cormier: Thank you.
Ms. Basman: I just want to address the particular community that you were asking about. That time that we are insisting is necessary at the front end of the process includes time to establish trust with counsel — not just find counsel, but establish trust with counsel. We know that individuals from certain communities have more barriers in their ability to explain their real fear and explain their basis for their fear. For individuals, for example, who come from deeply homophobic countries with harsh consequences and penalties, it may take and it sometimes does take a bit longer in order to establish that trust and to explain the basis for the person’s fear.
To build on what Professor Aiken has said, this is why it is so consequential and so important to build in sufficient time from the beginning and to ensure that there is enough discretion. We’re very concerned with the mandatory referrals for abandonment and the individuals that will fall through the cracks as a result.
[Translation]
Senator Cormier: We are studying a budget bill. What are your proposals for prioritizing financial resources within the current system, with the proposed amendments?
In your opinion, what are the budgetary priorities? Where should the money go? Is this bill adequate, considering the issues you just outlined?
[English]
Amanda Aziz, Co-Chair, Advocacy, Canadian Association of Refugee Lawyers: Thank you for that question.
Just to understand, with respect to Division 38 and resource allocation, we welcome the idea that processes would become more simple and less duplicative for claimants, but I think our concern has more to do with just ensuring that those regulations are done in consultation with stakeholders and that the timelines are being allocated and developed in a proper manner and that flexibility is built in.
In terms of where the money is going, I mean, certainly we are talking about Division 38. Our association was very active with respect to concerns around funding for legal aid. We obviously welcomed the increased funding by the federal government for housing, but our concerns with respect to this division have to do with ensuring that processes are fair and transparent, that there is enough assurance, I suppose, that there won’t be these mandatory abandonment hearings and that there will not be a compromise of fairness for very vulnerable claimants, as you’ve raised.
Ms. Tamjeedi: In terms of the UNHCR and in terms of the resource allocation, that is separate from the provisions that are indicated in this legislation.
However, we have observed an increased amount of difficulty for individuals, such as asylum seekers, to find housing and access legal aid due to the increase of claims. We have a limited number of refugee lawyers practising in Canada. We welcome the increase in housing funding but also in funding to legal aid.
We have seen different models in different parts of the world. In certain parts of the world, there is a reception centre model where claimants are housed in a reception centre. They’re free to come and go, but they’re provided support services through legal aid, through housing to find more permanent housing further on, support services in terms of filling out their applications and in terms of therapy and other social services. That’s one model.
There are other models, like we see in Canada, where it is a shared responsibility between provinces and the federal government, and this is something that we encourage. It should not fall to one level of government to respond to the increased levels of asylum claims and the supports they need, but it should be the responsibility of all levels of government, including municipalities, provinces and the federal government.
The way that Canada is going right now is more towards a supportive housing model that we’re seeing, one that offers services inside that housing unit. It is one way to do it. It is a good practice in certain areas of the world, but it’s not the way. There are many different models.
In terms of looking for something that works the best in terms of finding supports for people, the best thing to do is consult with refugee organizations and service organizations like FCJ Refugee Centre but also with refugees and claimants themselves who have been through the system and understand how it works in Canada.
Senator Bernard: Senator Cormier asked the question I wanted to ask, so let me do a follow-up to his question and your responses.
I’m sure there are many of us who believe this shouldn’t be part of the budget bill. Your strong recommendations on that are certainly heard, but as Senator Cormier was saying, it’s not likely to change things.
Given that strong possibility, are there other recommendations that you think would be helpful that would address the concerns you’ve very clearly outlined today? Any of you can answer.
Ms. Basman: We have made a few recommendations today. With respect to streamlined processing, we’ve really highlighted the importance of consultation on the timelines and removing some of the mandatory language from the legislation.
We can also speak a little bit more about the designated representative provisions that are changing or that are being introduced, I would say, and explain, perhaps, a little bit more of our concerns about the potential for consequences in ability to access pre-removal risk assessments or meaningfully participate in pre-removal risk assessments.
If I might give an example: For an individual who has a serious mental illness, who is, at that time, potentially, not receiving treatment and is not able to really understand or engage in the process but who is facing removal from Canada, that person — and I’ll give an example, as there are a few countries in the world where, unfortunately, individuals with serious mental illness are persecuted specifically — that individual needs to have a pre-removal risk assessment. They need to have access to a determination of whether they will face persecution.
However, imagine that individual is not able to engage in the process. What happens is when a pre-removal risk assessment, or PRA, is served on an individual, they have 15 days to complete the forms and then another 15 days to provide their submissions. If they don’t complete the forms within 15 days, they no longer benefit from a stay of their removal; they can be removed.
If an individual is not able to appreciate the proceedings, then they can’t fill out those forms. You might think, “Great, let’s have a designated representative come and assist them,” and that may work if the designated representative is able to work with the individual to articulate the basis of the claim. However, what happens if they’re not able to do that?
What we have a concern with is the potential for Canada Border Services Agency to serve on a designated representative this form that then triggers timelines that may, if not completed, result in removal or — where an individual might have the power to waive service of the PRRA and waive their right to a PRRA — which then moves towards removal.
I will tell you that we have seen this in practice. We have real concerns about the use of substitute decision making in the context of PRRA service and PRRA waivers, specifically, even though we welcome the potential for supportive decision making and for designated representatives to ensure people have meaningful access to procedures.
The Chair: Ms. Basman, if I may pursue that line of inquiry, your suggestion to focus on supportive decision makers as opposed to substituted decision makers, is there some international precedent here?
Ms. Basman: I can come back to you with this, but there are international organizations that have taken a very strong opinion that substitute decision making is actually a violation of an individual’s right to equality.
There is literature, and I would be very happy to provide that to you after, but it is a movement of disability rights advocates who have expressed serious concerns with substitute decision making over supportive decision making.
The Chair: Thank you. We would appreciate a one-pager, please. We don’t want to impinge on your time.
Let me move to the funding for legal aid. I think we all know how difficult it is for asylum seekers to access qualified counsel in a timely way. How far does this budget allocation for legal aid go towards meeting the gap in funding?
Ms. Aziz: Thank you for that question.
Our organization did welcome the sustained funding. It’s a five-year funding budget, so funding for five years allocated for legal aid, and there is $43.5 million after that moving forward after the five years specifically for immigration and refugee legal aid systems.
While we welcome that funding, we do remain concerned about the increase in claims and the increased pressures on provincial legal aid organizations.
As you’ve heard, we are obviously very concerned with respect to sustainable funding, access to counsel and consistency of legal aid access across the country. There are some big differences in terms of in which provinces claimants are able to access lawyers via legal aid.
From our perspective, although we do welcome the sustained funding — the multi-year plan — it is something that the government does need to be paying more attention to with respect to ensuring consistency, high quality and increased funding across the country.
I think we will see, as claims increase over the next year, whether or not this funding will be adequate, but I certainly know from experience and talking to counsel across the country that we already have a huge problem with respect to the amount of legal aid that’s available with respect to the number of legal tariffs that are provided for refugee claims, and it will just continue.
The Chair: It’s better, but it’s not enough.
Ms. Aziz: It is filling the gaps that we were concerned may have occurred if it wasn’t announced, but, yes, we could always be doing better.
The Chair: I have a final question for the FCJ Refugee Centre. It happens to be located in the neighbourhood I used to live in. I’ve been there often. It is a wonderful, welcoming place. My question to you is about the $1.1 billion allocation in housing.
In Toronto, we have recently seen some very disturbing results to the housing crisis. This $1.1 billion in housing, my understanding — and Ms. Aiken, correct me if I am wrong — is a mechanism to reimburse municipalities and refugee shelters. Does that reimbursement mechanism work well or should there be sort of an allocation to the city, to reception centres, which they can have in their bank account and use as the need arises and account for at the end of the year? Would that work better?
Ms. Aiken: Thank you for the question. From where we sit in FCJ Refugee Centre, there is no question there needs to be a better plan and that the current proposal in terms of the money allocated doesn’t go far enough. First of all, it’s probably not enough money, but more critically, it’s not underpinned by the kind of coordination that we need to see between the various levels of government to ensure that asylum seekers are not on the sidewalks of Toronto.
I appreciate the question. There are probably more steps that need to be taken in this regard to ensure that we’re not seeing reproduction of, effectively, the crisis we’ve seen in Toronto over the last 18 months.
The Chair: There being no further questions, let me, on all our behalf, thank our witnesses both in person and online. You have helped us a great deal in understanding what is at play.
Senators, our next meeting will be held on Wednesday, May 29, where we will hear from officials from Health Canada on Divisions 31 and 32. We will also hear from officials of Employment and Social Development Canada to speak to Division 23 about Employment Insurance.
We then intend to consider our report to Finance on Thursday, May 30. You are invited to send your observations for any of the divisions in advance to the clerk so that we are all prepared to reflect on these on Thursday.
(The committee adjourned.)