Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 20 - Evidence
OTTAWA, Tuesday, June 19, 2012
The Standing Senate Committee on Social Affairs, Science and Technology, to
which was referred Bill C-31, An Act to amend the Immigration and Refugee
Protection Act, the Balanced Refugee Reform Act, the Marine Transportation
Security Act and the Department of Citizenship and Immigration Act, met this day
at 2:30 p.m. to give consideration to the bill.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
The Chair: Honourable senators, I call the meeting to order. We have a
very full agenda today. Our witnesses are in place.
Before I introduce my colleagues and welcome the witnesses, I have a couple
of reminders for the committee. This two-hour session will end at or before
4:30. We will then have a brief transition and go immediately into the next
session, which will end at or before 6:30.
We will not have pages with us for much of the afternoon. With that, unless
there are questions from senators, we will proceed with our meeting. We are
continuing our study of Bill C-31. I officially welcome you all to the Standing
Senate Committee on Social Affairs, Science and Technology.
I will ask my colleagues to introduce themselves.
Senator Seidman: I am Judith Seidman from Montreal, Quebec.
Senator Wallace: I am John Wallace from New Brunswick.
Senator Seth: I am Asha Seth from Toronto, Ontario.
Senator Eaton: I am Nicole Eaton from Ontario.
Senator Martin: I am Yonah Martin from B.C.
Senator Merchant: I am Pana Merchant from Saskatchewan.
Senator Jaffer: I am Mobina Jaffer from British Columbia.
The Chair: Thank you, colleagues.
I am Kelvin Ogilvie from Nova Scotia.
We will have four separate presentations today. Currently here, from the
Barreau du Québec, we have Carla Chamass from the Research and Legislation
Service; Hugues Langlais, President, Immigration and Citizenship Committee; and
Richard Neil Goldman, Member of Immigration and Citizenship Committee.
I understand, Mr. Langlais, that you will be making the presentation for the
Barreau du Québec.
From the Canadian Civil Liberties Association we have Noa Mendelsohn Aviv,
Director of the Equality Program. By video conference we have Andrew Wlodyka, a
partner with Wlodyka, MacDonald, Teng; and as an individual, Catherine
Dauvergne, Professor, Faculty of Law, University of British Columbia.
Welcome to all witnesses. I will invite Mr. Langlais to present first.
Hugues Langlais, President, Immigration and Citizenship Committee, Barreau
du Québec: Good afternoon and thank you, members of the committee, for
inviting us to take part in this debate on Bill C-31.
You must understand that, for the Barreau du Québec, the security and
effectiveness of our immigration system are ongoing concerns. As you mentioned,
I am the president of the immigration and citizenship committee. I am joined
today by Ms. Chamass, a lawyer in our research service, and by Mr. Goldman, a
member of our committee.
When Bill C-31 was before the House, we had the opportunity to study it
before it was adopted. We made a number of observations that we sent in two
letters to the House. You should receive, or have already received, a copy of
these communications. One is a letter of May 24, which is actually a reply, and
the other is a letter of April 20, 2012, which contains most of the comments the
Barreau du Québec made on the matter.
Basically, I would like to sum up our position on some aspects, specifically
the fact that the bill still, in spite of everything, provides for people to be
detained. The detention is now reduced to six months, but that duration is still
excessive in our society. It could also include the detention of children less
than 15 years of age, should they choose to remain with their parents once they
have been designated in the category. Countenancing the detention of minors,
children, in our society is a major concern for us.
Our other concern is that it is impossible for refugee claimants who have
been identified as part of this amended process to return to their homes if the
occasion arises during the stipulated period of five years, even in an emergency
when they are looking after the health of a loved one or are mourning the death
of loved one. We would like to bring this concern to the committee's attention
once more so that it can be evaluated again.
Our final concern is that the act would be retroactive to 2009. In our
society, acts are deemed to come into effect on the date they receive royal
assent. They are not retroactive.
I will now turn the floor over to my colleague, Mr. Goldman.
Richard Neil Goldman, Member, Immigration and Citizenship Committee,
Barreau du Québec: As mentioned in our two letters, the Barreau du Québec is
opposed to refugee claimants being placed into categories. Bill C-31 creates two
broad, extraordinary categories.
First, irregular arrivals. We feel that the criteria used to designate
irregular arrivals in no way justify the dramatic consequences such as the
special detention program, which even includes children, no appeal when the case
is denied and no permanent residence or family reunification for five years.
The other broad category involves people from designated countries of origin
or safe countries. The Barreau du Québec is very concerned by the fact that the
criteria no longer mention human rights in the countries in question and the
expert panel no longer exists. The designation is made solely by the minister.
The consequences are equally dramatic: a hearing in 30 or 45 days and no appeal.
In a word, the Barreau du Québec is against any discrimination against
refugee claimants. The Barreau du Québec is for a system that gives all refugee
claimants access to fair and equitable procedures.
Mr. Langlais: We are now ready to answer your questions.
Noa Mendelsohn Aviv, Director, Equality Program, Canadian Civil Liberties
Association: Thank you, senators. I will jump very quickly into some of our
main concerns, some of which you have heard. I presume that many of you are
familiar with some of the details of the bill.
The Canadian Civil Liberties Association is concerned that Bill C-31, if
passed and implemented, would violate several of Canada's constitutional
obligations as well as our international obligations. This would come at a great
cost to Canada and Canadians, ethically and also financially. I would be happy
to answer questions on that at a later time.
If implemented, Bill C-31 could provide for three significant violations of
our Charter. The first is discrimination. One example of this, as we heard, is
the designation of individuals who come as a group who are designated by the
minister. Under the bill, the designation does not require that they have done
anything wrong, that they be under any kind of suspicion or that there is any
risk in connection with them. If you read carefully — and I would be happy to
take questions on the provision of the bill — there is no wrongdoing, no
suspicion or risk required for the minister, lawfully under Bill C-31, to
designate that class of individuals and all the harsh consequences that befall
them. There are many other discriminatory categories that Bill C-31 brings in,
but I have not the time to list them now. Again, I would be happy to speak about
that in more detail.
The second major concern is a violation of the right to be free from
arbitrary detention and the right to liberty — both of which are protected in
our Charter — and arbitrary detention of people who are aged 16 or older, with a
possibility that children will be detained. Many people will be detained for
over six and a half months under the bill and the new grounds for detention,
which are extremely draconian and offer no opportunity to consider mitigating or
Our third concern is that Canada would be in violation of the principle of
non-refoulement, the principle that we do not send people in danger back to
their country of origin. This is due to the inadequate process that is
envisioned by Bill C-31, the lack of appeal and the drastically and irrationally
short timelines, which could be easily remedied by this committee.
In brief, those are our concerns. Since our time is short, I want to take a
moment to think about the role of the Senate. I do not need to tell you, but for
the record I wish to state that the Senate is a house of Parliament. As
parliamentarians it is incumbent on the Senate not to pass laws that violate our
constitution. As I mentioned before, Bill C-31 violates the rights to equality,
liberty, to be free from arbitrary detention and to life and security of the
person. That is, in fact, what will happen to people if they are sent back to
It is the role of the Senate as parliamentarians to make sure that the
executive branch — the government — does not give itself excessive powers
without accountability, and in particular when those powers will violate
people's fundamental, constitutional rights.
Finally, I have a word about Canadian history. Canadian history is marked by
several stains, including the 1914 refusal to allow a boat of Sikh immigrants to
land in Canada, the denial of entry to Jewish refugees in 1939 on the SS
Saint Louis, the internment of Japanese Canadians during and after WWII,
et cetera. History has judged us, and it will judge us again.
The question now is how will history remember us at this juncture? Will we
jail innocents? Will we send desperate people back to danger? Will we take them
in only to mistreat them? Will yours be the hands that sign off on a bill that
is unconstitutional under Canadian law, a violation of international norms and a
violation of basic human rights? You have the opportunity to make a difference.
This bill did not get adequate time in the House of Commons. Take it and study
it. There is a lot to be concerned about.
The Chair: Thank you very much, and now I will turn to our guests by
video conference. Ms. Dauvergne, I understand your time is somewhat limited. I
will go to you first for presentation. Please proceed.
Catherine Dauvergne, Professor, Faculty of Law, University of British
Columbia, as an individual: Thank you. Can you hear me?
The Chair: Yes, absolutely.
Ms. Dauvergne: I will need to leave after about 50 minutes, and I
apologize in advance for that.
My brief remarks today are addressed to the designated foreign national
provisions of the bill. My background is as a researcher, teacher and scholar of
refugee law in Canada and Australia. I will draw particularly on my knowledge of
the Australian immigration detention system in these remarks.
There are three points that I want to make about the designated foreign
national provisions in Bill C-31.
The first of these is that the amended detention regime for designated
foreign nationals is unconstitutional. It is in breach of the refugee convention
and a number of international human rights documents.
A review scheme that begins at 14 days and then goes to a six-month interval
is simply far too long to remedy the charge that this is arbitrary detention. A
more suitable time frame would be a 14-day review, followed by a 30-day review,
then a 30-day review and so on. This is much more likely to pass constitutional
In Australia, the average time that an individual spends in immigration
detention right now is approximately three months. Once somebody is detained in
Australia, they are on a fast track for review of an asylum claim that they
might make because the deprivation of liberty is viewed as a severe
infringement. That is a comparison with what has, up until this point, been
regarded as the most severe immigration detention system in the world. Our
current provisions under the Immigration and Refugee Protection Act have been
very effective at balancing rights, achieving governmental objects and
appropriate criminal sanctions where merited, as the recent charges arising from
the MV Sun Sea arrival demonstrate.
The second point that I want to make is that depriving groups of people who
are by definition the most desperate of appeal rights and family reunion rights
is simply punitive.
There is no provision in the legislation that designates what a group can be.
It could be as small as two people. That does not make any sense at all. These
provisions are retroactive, which is a provision that is in breach of
fundamental principles of the rule of law. The notion that children will be
given a so-called choice of whether or not to be detained is an abuse of what
the notion of choice is.
In the Australian system, once somebody is detained they have a fast track to
an asylum determination and an automatic right to representation through legal
aid. None of those options has been considered in implementing this regime in
Finally, the third point I would like to make is that the experience in
Australia demonstrates that severe, mandatory detention provisions will not
actually deter people from arriving in boats. Evidence now emerging in Australia
shows that a severe regime like this makes people smuggling more profitable. It
is already a highly profitable industry. I do not know that we need to do
anything to assist this industry to make more money.
The Australian experience of stripping out family reunion rights was that
many more women and children began venturing to Australia in boats, and since
2007 Australia has stepped away from this kind of rights deprivation.
What we are referring to as "people smuggling" has been an essential
mechanism for saving the lives of refugees throughout the 20th century.
Thank you, Mr. Chair.
Andrew Wlodyka, Partner, Wlodyka, MacDonald, Teng: Thank you. First of
all I want to say that I come from a perspective of both an immigration
practitioner and as a former assistant deputy chair of the Immigration and
Refugee Board, so I know how difficult it is to strike a balance between an
expeditious and a fair system. It is important that we understand that the
status quo is not an option. We cannot afford to have a huge board to make
decisions on determining refugee claimants.
The issue must be one to be expeditious and fair. In my judgment regarding
balance, Bill C-31 is an attempt at being expeditious and fair. Even those
people who come from designated countries have an appeal system that is the same
as exists now, which has been in existence since 2002. Nothing has been taken
away. An added appeal right has been provided for people who do not come from
The only problem I have is that I would have preferred the previous language
in the legislation, which allows for a more fine-tuning selection of groups
within countries. Therefore, those people would still have appeal rights.
Obviously, the Roma of Hungary and the Czech Republic are classic examples.
I believe that the government has listened in terms of changing the
legislation for detention. It is similar to what is provided for security cases.
Despite what some may say, I do believe that the amended legislation will pass
judicial scrutiny and is not arbitrary. It is certainly a considerable
improvement over the previous legislation.
One of the efforts in deterring people from coming over on ships is to make
the overseas selection of refugee determination as transparent as it is in
Canada. One of the significant problems — and I have this frustration as a
practitioner — is that the offshore selection of refugees is not as transparent
as in Canada, and it leads to immense frustration. Significant efforts must be
taken to make it worthwhile to apply for asylum outside of Canada, so that it is
not necessary to allow people to profit by hiring them to transport groups to
Canada by boat.
I do not have a problem with the minister undertaking the responsibility of
designating the countries. I believe the minister is accountable to Parliament
and the public. Faceless experts are not accountable to anyone. In that sense, I
disagree with other speakers. I have faith in our transparent system. The
minister has that responsibility and can exercise it.
The only adjustment I would make would be that I do not believe it is
appropriate to make orders not susceptible to public comment. I would prefer
these designations, whether it is irregular arrivals or designated countries, to
be made in the same way as regulatory provisions, to allow for public comment.
That would certainly alleviate the situation much better.
I do not have a problem with different appeal rights, given that, at the very
least, people would have the same right they have now.
I understand it is always difficult to choose, to make a balanced system, but
clearly the status quo does not work. We have an enormous backlog, and some
effort must be made to change that situation. Thank you, Mr. Chair.
The Chair: Thank you both.
For the benefit of our witnesses, in particular the two of you on video
conference, if a question is directed to another witness and one of you wishes
to respond in some way, just signal with your hand and the chair will make
certain you have a chance to intervene. The same goes for our table guests:
Whomever the question is directed to, if others wish to respond, please signal
to the chair that you wish to add to that.
I will now go to my colleagues and open the floor up to questions.
Senator Jaffer: Thank you very much, chair, for allowing me to ask
questions. Chair, if you would agree, may I just ask questions of Ms. Dauvergne
and then stop? My other colleagues may have questions of her. Then I will come
back on a second round, because she will be with us only for 15 minutes.
The Chair: That is a very good suggestion, but we will see how it
goes. Why not start and we will proceed the most efficient way possible?
Senator Jaffer: Thank you, Mr. Chair.
I have a question for you, Ms. Dauvergne. In British Columbia, you are very
well known for your work on these issues and especially your experience in
Australia. I want to ask specific questions. I understand that in Australia they
used to detain children under 16 years of age, and now I understand that both
the U.K. and Australia have stopped detaining children because of the studies of
the terrible, harmful effect that happens on asylum children who are detained.
Can you please comment on that?
Ms. Dauvergne: Yes, that is correct. Australia has had extensive
experience with what happens to children when they are placed in immigration
detention. The most significant study was the one done by the Australian Human
Rights and Equal Opportunities Commission that was published, I believe, in
2002, which I will send along to the clerk.
As a result of that study, Australia changed its detention regulations to
state that detention of children will occur only as a last resort.
It is unfortunately the case that there are still some children in
immigration detention in Australia when they are not able to find another
solution and that other solutions have not been forthcoming as quickly as would
be hoped. Since about one year ago, Australia has developed a scheme called
community detention, which is essentially a release into the community. That is
the prioritized route for families who would otherwise come within the mandatory
detention regime in Australia. It is also Australian policy to release parents
with their children, so that children can be cared for in the community by their
parents when they are released into this community detention scheme. That is the
new scheme of the past year.
I should also say that I am able to remain with the committee for 50 minutes,
so I am sorry about the confusion.
Senator Jaffer: That is my fault, sorry. I will go on, then.
We heard what happened yesterday and looked at what has happened in the House
of Commons in the transcripts there, and we have been given a lot of material.
I should not speak for my colleagues, but for myself. I definitely understand
the minister wanting to take action. I respect that because there certainly is a
need with the four- to six-year wait, which is not acceptable, and you want to
keep the integrity of the system in place.
I have been struggling with what suggestions or what amendments we could
suggest to improve on this bill. I will give you some examples. As a lawyer who
has worked in this area for a long time, we know 15 days will not work. It is a
dream. Those who practise in this area know 15 days will not work.
The second thing that will not work, certainly in my province of British
Columbia, is that there is no increase in legal aid. I do not want to take too
much time, but if a person arrives at a port, he has 15 days to find a lawyer to
put in his basis of claim and submit that. It will not happen.
I would like to hear from you on that issue and other issues. We know what is
wrong with this bill, but how could we improve on this bill so it will be
effective? I would like to hear from anyone.
Mr. Goldman: The Barreau du Québec's position is that what was put
before Parliament previously — the Balanced Refugee Reform Act — had many of the
suggestions that we would make to improve the system. It has been commented that
the status quo does not work, and we agree 100 per cent.
Refugees, advocates, government — nobody wants to see waits of two or three
years for a decision. The Balanced Refugee Reform Act did provide for reasonable
timelines: 60 to 90 days for a hearing and a quick appeal with access to
everyone on paper to be done very quickly. We feel those were realistic
Therefore, while we do agree that the status quo does not work, we feel it is
important not to throw out the baby with the bath water, so to speak. It is not
because we have two or three delays that we need to have people deported on day
31 with no appeal and no possible review of their case.
I would like to comment on what Mr. Wlodyka said, that the people from
designated countries have the same appeal rights as they do now and nothing
less. That is not correct in the sense that they will no longer have effective
access to the Federal Court. They could apply to the Federal Court, but they
will no longer have a stay of their removal. As they will have no appeal right
under Bill C-31 and no effective access to the Federal Court, they can, in
theory, be removed 31 days after they arrive in Canada with no review of their
case at all. Under the Balanced Refugee Reform Act, however, they would have
access to an appeal.
Mr. Wlodyka: If I may, Mr. Chair, it is true that under the new
amended legislation you would have to apply for a stay, but lawyers have been
doing that for years. It is still possible to get a stay. We are only talking
about those designated countries of origin. This is not the case for the
majority of refugee claimants who will not be subjected to those restrictions.
These people are coming from countries like the United States and from EU
countries; it is not the same for someone coming from Afghanistan or from
Somalia. We have to be realistic about this. If you start imposing all of these
trappings, then you are back to square one and the status quo.
I agree with what my colleague was saying about legal aid. I think it is
scandalous that the provinces do not provide it, especially in my province of
British Columbia. It is a crisis there. British Columbia is lax in terms of
providing the legal aid that it should be providing. Those are not issues of
legislation but issues of money. If the provinces do not step up to the plate,
it is up to the federal government to provide the necessary funding to make this
system work. If you have legal aid and you have proper representation, then this
system has a much better chance of succeeding. If you do not have legal aid and
you do not have proper representation, then I agree with Senator Jaffer that
problematic issues do arise.
Ms. Dauvergne: That is a wonderful question, namely, how could you
amend this legislation. I agree with Mr. Goldman that the previously suggested
timelines of 60 to 90 days are appropriate and workable, that the status quo and
the long time lags are utterly unacceptable and that measures need to be taken
to address those time lags.
I think that there is no strong public objective that is achieved by having
the designated foreign national provisions and the new detention regime. I think
those provisions should be taken out of the legislation. We have a good,
workable detention regime. The one modification that particularly in British
Columbia we are acutely aware of is that when you have a genuine mass arrival —
that is, a group of 100 people arriving at the same time — the current schedule
for detention review is not workable. A detention review schedule that starts at
15 days and moves to 30 days is a more appropriate schedule for a mass arrival
situation because we have not been able to achieve what exists currently.
Furthermore, it is inappropriate to have a law that the government has no hope
of complying with.
One of the reasons for less advocacy occurring about the 15-day time limit is
that I do not think many lawyers believe that will happen to anyone. I am not
sure what the government strategy will be on day 16 after this comes into effect
and we realize that those hearings are not occurring.
In the European Common Asylum directive a requirement for legal aid is
written into the European law for individuals who are in the asylum system and
are detained. It currently is treated as a question of money rather than law in
Canada but that is only because it is not in our law.
Ms. Mendelsohn Aviv: To add a couple of points in terms of the
difference in the appeal process for people from designated countries of origin
and other categories, first, what happens at the Federal Court is not an appeal;
it is judicial review and is far more limited in scope. Second, when the
timelines are as dramatically and irrationally short as they are under the
current bill, then there is more need for an appeal process than there was under
the current Immigration and Refugee Protection Act.
Senator Eaton: Thank you all for coming; very interesting points of
view. I want to be educated.
Regarding the five-year hardship rule that you cannot return to the country
of origin, did Mr. Langlais say that we do not send people back to the country
of origin if there is danger? Help me understand: Obviously if you come to this
country as a refugee, which I imagine is tremendously traumatic, why would you
want to go back to a country that would present danger to you? We have seen what
has happened to Canadian citizens who hold dual citizenships in countries like
Iran or Syria and they get into trouble when they go back to their own
countries. Why do you think this five-year law is such a hardship?
Mr. Langlais: The problem we have with the five-year rule is that,
once people are admitted to the refugee process in Canada, they cannot go home
for emergency reasons. We are not talking about a vacation, but for an
emergency. Returning home means the loss of their status, even if the reason is
completely humanitarian. Just think about the death of a loved one; it is human
nature to want to be with your family at a time of bereavement. In that specific
situation, people classed as irregular arrivals lose the protection they have
been granted when all they want to do is be close to their families.
Certainly, we can see a conflict. But at the same time, there has to be a way
to balance humanitarian values and a democratic society's values.
Senator Eaton: Do you have studies or statistics on people who go back
as soon as they have been accepted as refugees?
Mr. Langlais: Not in the case of the death or for humanitarian
reasons, no. It is just a reality of life. Things can happen. Anything can
happen in five years.
Senator Eaton: Mr. Wlodyka, you came forth with an interesting idea
that perhaps we should be looking at accepting refugees outside Canada, before
they get here, so they know what the prognosis or acceptance is, so to speak.
Could you elaborate on that? Say a country in Africa blows up. Do we open a
refugee office? What do we do?
Mr. Wlodyka: At the moment, to educate you a little bit, decisions are
made by visa officers. I have had cases like that where I actually attended
interviews with claimants who have made refugee claims. They are usually
designated by the UNHCR and they have been pre-screened. I can tell you from
personal experience that the visa officers treat these claimants worse than
dirt. I have had claimants who have been in my presence at embassies where they
have had nervous breakdowns because of the nature of the questioning done by
these officers. It is no surprise why people want to come to Canada physically
to make a claim here because of the way they are treated by visa officers
overseas. There have been many decisions by the Federal Court setting aside
decisions by visa officers in the way that they handle refugee claims. That is
part of the big problem, namely, the visa officers are not trained in the same
way as members are trained. It is not as transparent a system. Do you know how
difficult it is to do an overseas judicial review of a visa officer when you are
representing a claimant designated by a church somewhere in the middle of Africa
or in Egypt or things like that? That is a significant problem. You need to make
the system as good outside as it is inside.
Ms. Dauvergne: I would add a little bit of information to what my
colleague has said. In the Tehran visa office, I was speaking with a woman this
past weekend who has been working there for some time. When a refugee wants to
be resettled to Canada in that location, the processing time is about two years,
and the Canadian visa officers do not accept the determinations of international
officials from the United Nations High Commission for Refugees. They take that
evidence as a starting point only. The process of waiting there will be about
two years in that particular location.
For somebody seeking resettlement in Australia, the process of waiting in
Tehran is about two and a half months at present. There is clearly a way we can
do better on this score, although it is not a complete response to what is
happening in Bill C-31. I do not have any statistics about who needs to go home
in an emergency in five years, but in a small circle of colleagues here in
Vancouver we have had three people with pending claims return in the last few
months that I know of, two of whom returned because young adult children were
grievously injured and in intensive care. That is a situation in which I think
almost any one of us would relinquish our current situation and go to be at a
child's side. It is these kinds of situations that are problematic in that kind
There is a lot of difference between compelling somebody to return to a
country and an individual exercising their own autonomy to make that decision.
Senator Martin: Thank you to all of you for the care with which you
are examining this bill and advocating on behalf of the people you represent.
I am sort of looking at this from a slightly different perspective. I am not
a legal expert, as many of you are, and I am looking at the intent of this bill,
which is to achieve the kind of balance that Mr. Wlodyka pointed to in
addressing the concerns that were before the minister and the officials before
the BRRA, the Balanced Refugee Reform Act, would come into full effect. Spikes
in some of the asylum claimants from democratic EU countries went up 100 per
cent to 5,800 people, for instance, from Hungary.
Looking at these mass arrivals in Canada, in the last 20 years we have not
had that many. We know how many there are in total, but anticipating that these
events could happen, there was a gap in what we would do.
Detention is not ideal, and we have all talked about that. I wonder what an
alternative would be, in that detention is to provide the kind of time that is
needed for the officials, the border officers and all of the counterparts
involved to address the situation.
Looking at the ministerial powers, I wonder if you heard the minister's
testimony yesterday in committee where, in terms of designating country of
origin or, in the case of Minister Toews, designating a mass arrival, there are
very specific criteria. These are not excessive powers in that it is not being
transferred to anybody else but the ministers. It is a great responsibility and
has the kind of transparency that is in the system that answers to a number of
different stakeholders and groups that are watching at every turn.
I am making a statement more than asking specific questions. In the testimony
we have heard thus far from ministers and officials as to the situation they are
encountering and why these measures are in place, these are all mechanisms to
protect the integrity of our immigration and refugee system and the integrity of
Canada as a sovereign country, to really look at what is in the best interests
of Canada as a whole.
We had testimony from Mr. De Angelis of the UNHCR, and he, too, talked about
the kind of scrutiny and involvement he will have along the way in the
implementation of this new legislation.
Did you have a chance to listen to any of the testimony yesterday? They were
here and they are on record and answered most of your concerns.
Mr. Wlodyka: From what I have heard from the minister, this is a real,
problematic issue. You have to separate refugee determination from permanent
resident applications, whether it is unskilled workers, an entrepreneur, or if
it is on humanitarian and compassionate grounds.
We have this problem that we are one of the few countries that has a system
in place where people who have successfully completed the process of getting
refugee determination can ultimately get permanent residency. Not all countries
do that. Refugee determination, under the convention, talks about protection and
not about permanent residence.
Where you have problems, and Mr. Langlais was talking about this, is when the
person goes back to their home country. To me, that is really strange. If your
life is at risk and you fled a country and then you are going back, however the
problem is, does not make sense to me. That is appropriate for these bars. You
cannot justify that.
We see this over and over again, where people have made refugee claims, end
up going back to their countries, whether it is Sri Lanka to visit their
relatives, and the whole idea of people going through the refugee determination
system, saying they have a well-founded fear of persecution, that their life is
at risk and then they go back as soon as they can, once they get a travel
document or passport, to visit their relatives, there is something fundamentally
This provision of a five-year bar is designed to deter people from doing
that. If you want to be able to go and visit your relatives right away after
getting permanent residency, apply as a skilled worker and an entrepreneur, get
a work permit and come to Canada, but do not use the refugee determination
system and then hoodwink us into believing your life is at risk, and as soon as
you get a travel document off you go to visit your relatives. That does not make
sense to me.
Mr. Goldman: I would like to point out that the Barreau du Québec's
concern about the five-year hardship after a person who is a designated
irregular arrival gets permanent residency is not so much about visiting the
country. It is about not being able to bring your family members here for family
reunification or not having access to permanent residency. That is our main
That said, I would like to address some of the points that have been raised.
Senator, you mention that the minister feels we are facing a crisis in terms of
arrivals. I have available the statistics of the number of refugee claimants who
have arrived in Canada in the last four years.
In 2008 it was 37,000; 2009, 33,000; 2010, 23,000; 2011, so last year,
25,000, and this year, according to the monthly figures, we are on track to
It is hard for us to understand what crisis there is, when we have gone down
from 37,000 to the low 20 thousands in the last four years, that caused the
minister to want to sideline Bill C-11, which was going to come into effect at
the end of this month, and introduce dramatic new measures.
You mentioned the UNHCR's testimony yesterday. I would like to refer to the
brief they submitted to Parliament, to which I believe you have access. This is
on the designated safe country. It is important to note about the designated
safe country that the general assessment of certain countries of origin as safe
be based on reliable, objective and up-to-date information from a range of
sources. The assessment needs to take account not only of international
instruments ratified or existing legal frameworks, but also of the actual degree
of respect for human rights and the rule of law evidenced in the country's human
rights record as a whole.
The UNHCR does not disagree with the whole concept of safe country. It agrees
that it might play a role, as it says, as a "procedural tool to prioritize or
accelerate the examination of applications," as long as the human rights records
of those countries are taken into consideration. In its Recommendation No. 9,
UNHCR recommends that a designation of a country as a DCO be based on objective,
reliable and up-to-date information and be decided by a panel of experts. That
is what the UNHCR is saying on record, and also that persons from designated
countries of origin, and every other claimant, be allowed a right of appeal.
I will end with this quote from paragraph 49 of their submission:
The right to appeal is a fundamental requirement of a fair and efficient
asylum procedure, to which no exception should be made. At the core of the
1951 Convention lies the principle of non-refoulement, whereby those with
protection needs cannot be returned to a place where they will be at risk of
persecution. . . .
Or serious human rights violations, including loss of life.
The purpose of a second review through an appeals mechanism is to ensure
that errors of fact or law at the first instance . . .
. . . can be corrected, to avoid injustice and to ensure respect for the
principle of non-refoulement.
Recommendation No. 13: The UNHCR recommends that all asylum seekers have
access to an appeal on the merits to the Refugee Appeal Division.
Ms. Dauvergne: In response to your question, yes, I am familiar with
the minister's position regarding the detention provisions that I have been
speaking of today. I do not think, and I am not persuaded, that there is
anything that requires us to have a detention regime where people are detained
for six months without access to a court. That is in breach of a basic principle
of oversight of what is in fact administrative detention.
I do not think there is an issue here of Canadian integrity, unless it is our
integrity as a human-rights-respecting nation. Certainly, we need to consider
why we would choose to step away from those fundamental obligations at this
point in time without a crisis.
Ms. Mendelsohn Aviv: Senator Martin, thank you for your questions.
The Canadian Civil Liberties Association, I will speak for myself, but I know
many others have been following this since the first bill, Bill C-49, was
introduced over a year and a half ago. Although I did not hear the minister's
testimony yesterday, I am extremely familiar with his position and have read his
public statements and the Hansard on variation occasions.
This needs to be addressed and it is important. If we are talking about the
intent of a bill, when it comes to designating what has been called in the bill
"irregular arrivals" — and I know the language has shifted in this committee to
"mass arrivals" — either way, that is one of the ways in which people escaping
danger may be able to organize to get out. That is the way the Jewish refugees
tried to escape from Hitler's Germany. They got on a boat and they got out. We
should be concerned because visa offices are not available in every place where
people are in danger.
If we look at the section that authorizes the minister to designate an
irregular arrival, it is extremely broad. It says, in clause 10 of the bill,
The Minister may, by order, having regard to the public interest, designate
as an irregular arrival the arrival in Canada of a group of persons if he or
(a) is of the opinion that examinations of the persons in the
group, particularly for the purpose of establishing identity or determining
inadmissibility — and any investigations concerning persons in the group —
cannot be conducted in a timely manner . . .
That is covered under our current immigration act. Administrative convenience
in establishing identity is covered in a fair and reasonable way under the
immigration act. And when the MV Sun Sea came, people were detained for a
long time, some may say too long. Under our current act, those provisions are
there; they provide for this.
The second category, which again is extremely broad, is if the minister "has
reasonable grounds to suspect that, in relation to the arrival in Canada of the
group" — not that anyone in the group did it, but in relation to the arrival —
"there has been, or will be, a contravention of subsection 117(1)" — which is
the human smuggling provision — "for profit, or for the benefit of, at the
direction of or in association with a criminal organization or terrorist group."
In other words, if someone out there engaged in human smuggling and the poor,
vulnerable people arrived in Canada, they are the ones who will be designated.
It is, on its face, irrational to penalize people in relation to whom a crime
I wanted to make a couple of other points, because you asked a number of
The Chair: Could you do that rather focused? This is taking a fair
amount of time.
Ms. Mendelsohn Aviv: Sure. There is one other point that I wanted to
make in terms of the five-year bar. A lot has been said about permanent
residence, but lack of access to a travel document also means that a person
would not be able to go to a third country to see a family member. We know that
where there are situations of refugees — and anyone who has friends who have
been in that situation — people will go wherever they can to find safety, so one
may end up in Finland and one in Canada. They may not need to go back to danger
but still want to travel to see family members when they have lost everything.
Senator Seidman: I would like to go back to the designated country
provision discussion we were having. There was something said — a lot said,
actually — that the minister is granted too much power in determining which
countries are safe.
In fact, it is my understanding that the minister does not have the power to
determine that in a subjective way but that there are quantitative and
qualitative criteria, outlined in clauses 58 and 84 of Bill C-31, the proposed
bill. Quantitative factors to be considered are the number of asylum claims from
the country that are abandoned or withdrawn and the number of asylum claims
rejected by the independent Immigration and Refugee Board, for example, and
these factors are very specific. There are qualitative aspects as well; the
country in question will be reviewed by Citizenship and Immigration Canada
officials. In fact, qualitative aspects such as the human rights record of the
country in question and the availability of mechanisms for seeking protection
and redress will be considered.
Just to go on, to tell you how many factors and criteria are actually listed
in regulation and will be listed in regulation and in law in this bill:
Recognizing that a country might not be safe in all regions, for all groups, is
available as well, so that a particular part of a country could be specified or
a class of nationals could be specified as not falling within the safe country
That is my understanding of the bill. I am making the observation here that
we have not really dealt with that. We have said that it is the minister's
subjective power and authority to make that decision. I do not think the bill
says that. I think that Mr. Goldman was the one who first mentioned it, and I do
believe that Mr. Wlodyka had some observations about this. I would appreciate
hearing from him in terms of what he might add to this.
Mr. Goldman: I appreciate your comments about section 58. I have it
right in front of me. There are two words missing from that section: "human
rights." This is just for cases, a small number of cases, I believe, where it
talks about independent judicial system, democratic rights, civil society. With
all due respect, that is not the same as the human rights record of the country.
Again, I think it is useful to look at the international bodies that have
appeared before your committee and the parliamentary committee. I refer you to
paragraph 32 of the UNHCR submission, where it is recommended that the actual
degree of respect for human rights and the rule of law, evidenced in the human
rights record of the country, be relevant criteria. They were criteria under
Bill C-11. There was an independent panel of experts. It seems that the minister
saw the importance of those criteria and that panel of experts. The Barreau du
Québec is at a loss as to why it is to the advantage to take out those two
safeguards, the criteria of respect for human rights and the independent panel
Mr. Wlodyka: I believe that the criteria that you have highlighted do
provide the kind of protections that people need in terms of showing objective
criteria for designating countries.
If you look in clause 58 at paragraph (b)(ii), "basic democratic
rights and freedoms are recognized and mechanisms for redress are available if
those rights are infringed." What else are human rights? That is exactly what is
provided in there. You do not need two other words put in there.
Civil society organizations exist. You have UNHCR and Amnesty International.
All of those organizations exist to make sure that these countries handle these
issues based on the rule of law. You have an independent judicial system. The
minister has the tools to do the job. I prefer the minister to do the job. He is
accountable to the public. He is accountable to Parliament. Are you suggesting
that the government officials are incapable of doing this job and giving proper
advice to the minister? Frankly, I disagree with that.
You are putting in faceless experts who are not accountable to anyone.
Frankly, this is a much better provision than the previous provision in the
previous legislation, and I commend the minister for doing it.
I have trust in the minister. I have trust in the government officials. I
believe that they can do a proper job, and it is transparent enough in terms of
publishing it. I would prefer a regulatory system that people could comment on
as opposed to an order. However, in terms of the actual legislation, I think
that you, Madam Senator, have pointed out absolutely that this does provide the
Mr. Langlais: As a final comment, I would like to remind you of our
opposition to this on page 4 of the letter of April 20. The last part of our
The Barreau is afraid that, with no such guarantees, provided by an expert
panel, the vagaries of politics and economics may well take precedence over
principles of fairness and of law.
You just have to think of the purely economic considerations, Canada's
obligations to our economic partners. Take Mexico as an example, a free-trade
partner of ours. No one around this table, or probably anywhere else in our
society, will admit that there is a ban on homosexuality. But day after day, we
see decisions that confirm the discrimination faced by homosexuals in Mexico.
But we cannot say that too loudly as it puts Mexico, a trading partner, in a bad
light. Except that the Barreau's concern is precisely that, that economic
concerns may be placed ahead of humanitarian concerns, by which we mean the
goals of the convention and of international law.
Senator Wallace: I was interested to hear a couple of you comment. Ms.
Dauvergne, who I guess has now departed, is one who made such comments.
Mr. Wlodyka: Yes, she has departed.
Senator Wallace: Ms. Mendelsohn Aviv, you commented as well on the
constitutionality of the bill. I believe that both of you made the comment that
you felt that it was contrary to the Charter, to the UN convention and to the UN
protocols. I was very interested to hear that. When the minister was here with
his staff, I specifically asked that very question, whether they were of the
view that it was not in violation of the Charter, the UN protocol and the UN
convention. He left no doubt in my mind that he felt that it was in full
compliance. I am not surprised. We have many bills before us. I can think of
very few times when we have had the Canadian Bar Association or the Barreau du
Québec appearing before us that it has not been suggested that a particular bill
is contrary to the Charter. We do hear that. It is not to say that it could not
be legitimate, but we seem to hear that with every bill that comes before us.
How do we reconcile that? How do we take the minister and his staff's opinion
and reconcile it with yours?
Ms. Mendelsohn Aviv: That is a tough question because, in effect, I
think it is asking me to explain the minister's position when I see something
that appears unconstitutional. We also have Supreme Court of Canada decisions
that have said that provisions far less dramatic than these are
unconstitutional. Take, for example, the Charkaoui case, in which
somebody who was suspected of no less than terrorism and who was put on a
security certificate for that purpose was put in administrative detention for
120 days. That is less than half the period that most people are likely going to
be sitting in detention under this bill. The Supreme Court of Canada said that
120 days is arbitrary detention and is a violation of section 10 of our Charter.
We have Supreme Court of Canada decisions about discrimination. The Supreme
Court has not talked about immigration status, but we are not even comparing
different classes of immigrants here. We are comparing refugees and refugees.
How do you explain the fact that a designated foreign national would have
different grounds of detention, for example, than a non-designated foreign
national, both of whom may be asylum seekers? How do you explain the fact that
Canada has put this person through a process and has determined that, "Although
you were designated upon arrival, you are now a refugee. We recognize that your
claim is, in fact, accurate. The sad story that you told us is, in fact,
genuine. You have your refugee status. Nonetheless, you have to wait five years
before you can get permanent resident status and before you can leave the
country. Do you want to set up a business in the United States like many
Canadians do? You cannot do that because you have not got a travel document."
Yet, somebody else who got refugee status in Canada would be able to get a
travel document. How do you explain that other than extraordinarily obvious and
I suppose it goes without saying that it has been many years since Canada
turned away refugees. I am grateful for that, but we certainly do have Supreme
Court of Canada decisions saying that we are responsible for sending people to
situations of danger and not just when they are innocent. Even for people who
may have committed offences, if we want to send them back to a place where there
is a death penalty, our Supreme Court has said that that is not on. It would be
a violation of our Charter if we, responsible for this person — they are in our
custody — send them back to a danger to their life, which is section 7 of the
I cannot explain to you how the minister reconciles it. I certainly see it as
Mr. Wlodyka: When you look at the security provisions that are in the
current legislation, the Immigration and Refugee Protection Act, those current
detention provisions are done by a Federal Court judge, and the timelines are
sort of similar to what is in the new proposed legislation. I tend to favour the
view the minister has of this law. We are talking about people who have
invariably used organized criminals to come into Canada. These people are not
blind and naïve. They know exactly what they are doing. They are paying $30,000
to $40,000 to $50,000 to get on a boat to ship them across to the country.
You have to look at this process not in isolation but in terms of the global
thing — making overseas refugee determination fairer. You have to also realize
that people have other means of applying for permanent residence to Canada. We
cannot just look at these provisions in isolation.
I think a lot of rhetoric is used in terms of these people. These people are
not refugees. They are refugee claimants. It is a different situation. These
people, if they are in detention and are legitimate refugees, will be out of
detention faster if we have a system that is able to get to them, hear their
cases quickly and make decisions to get them out of the system.
We have to create that system that makes quick decisions, and we cannot look
at these things in isolation.
A court that is reviewing the detention provision will be looking at the
whole picture globally and not just in isolation. Thank you, senator.
Senator Wallace: Mr. Wlodyka, you said earlier that the status quo is
not working, and I think you then went on to speak about the processing time
that it takes for asylum seekers, and you have touched upon some other issues.
Bill C-31 seeks to address these problems with the status quo. Are there any
other issues you would see as significant shortcomings in the existing system
that you feel Bill C-31 addresses and addresses satisfactorily?
Mr. Wlodyka: First of all, I think one of the important things is that
you want the refugee determination system to really deal with real refugees by
creating a system whereby people who come from refugee-producing countries have
all of the protections that are available. Those other countries, EU countries,
countries like the United States, are still going to have access to a refugee
determination system, but they are not going to be going through the appeals
that drag this whole process on and on and on so it is four to six years later
and huge backlogs are developed. You will not be able to hire enough board
members to deal with all of the cases. Some effort has to be made to make the
system expeditious and fair, because if it is expeditious and fair, then issues
such as detention will not be as big an issue because they will be out of
detention because their claims will be resolved quickly. If you have all of
these roadblocks, you end up back at square one, and we have accomplished
nothing. Then huge gobs of money will have to be thrown in, which we do not
have. Thank you.
Senator Wallace: Thank you for that.
Mr. Goldman: If I could respond to a couple of those points, in terms
of being expeditious and fair, at the risk of repeating ourselves, we do feel
that the 60 to 90 days in the Balanced Refugee Reform Act were very reasonable,
but once we are getting down to 30 days for a hearing, it just becomes
impossible to find legal counsel, properly get evidence or even begin to deal
with overcoming trauma of torture, sexual assault and so on.
In terms of the backlog of cases, we do all agree that things should move
much more quickly. We just do not think they should move as quickly as 30 days.
A large part of the backlog has to do with the under-resourcing of the
Immigration and Refugee Board, and this problem will continue. If it is not
properly resourced, then nothing will improve, no matter what timelines are
written on paper.
Mr. Wlodyka mentioned that he felt the intention of this law is that people
who come from refugee-producing countries will have all the protections, but
some others will be fast-tracked. Under the designation of irregular arrivals,
it has nothing to do with what country you come from. You could be coming from
Sri Lanka, Eritrea, Somalia or Syria. You are designated an irregular arrival,
which means that a group, which as Ms. Dauvergne pointed out is not defined and
could be as few as two people, shows up with false documents, with the
assistance of any type of smuggler. They can be designated an irregular arrival
and suffer all the dramatic consequences.
Since attention is given, I think justifiably, to the view of the United
Nations High Commissioner for Refugees, I would like to read into the record
their comment on the irregular arrival differentiation. At paragraph 8 of their
brief they say this designation is also problematic from a non-discrimination
point of view. UNHCR does not believe that the stated grounds for the
designation as irregular arrival provide for a legitimate justification for
substantially differentiated treatment of refugees and asylum seekers with
respect to detention, access to an appeal or access to permanent residency. The
legislation may therefore be at variance with human rights-based,
non-discrimination guarantees, example, Articles 2 and 26 of the International
Covenant on Civil and Political Rights and also Article 3 of the 1951 refugee
Senator Verner: I would just like to go back to your view — I would
like to go back to it quickly even though it was dealt with fully — about people
losing refugee status for going back to their countries. I venture to say that
the point of view that you have expressed is certainly shared by a large
majority of Canadians. But that said, my question goes to you all.
Logically, a person obtained refugee status because he feared for his life in
his own country. Having obtained the status, imagine that he goes back to his
country for whatever reason, to see his family, for an emergency or for
humanitarian reasons. If he goes back for an emergency, you would like to hope
that the country will respect his right to life and would back off during the
visit for humanitarian reasons. But if the country really is one where human
rights are not observed and our person ends up in danger of his life or of being
imprisoned, could you tell me what Canada's obligations are at that point?
The Chair: Mr. Wlodyka, you were mentioned specifically. Do you have
any comment to make on this?
Mr. Wlodyka: Until the person is actually a Canadian citizen, Canada
does not have any legal obligations to that person. Canada's obligation is to
protect that person while they are in Canada. They have been designated as a
refugee. As they are not citizens yet, the legal obligation would be on the
state that the person is a citizen of. If they go back and they are Canadian
citizens, then it depends on which passport they use to go back on. We heard the
story of these Iranian Canadians who have gone back using an Iranian passport,
so Iran does not consider them to be Canadian citizens, because as a Canadian
citizen you need a visa to go to Iran. If you have got a citizenship, then
clearly you have to travel getting a visa as a Canadian citizen. Someone who is
not even a permanent resident yet, in my judgment, we do not have any legal
obligation as a state to offer protection to that person if he ends up back in
Again, it goes back to the fundamental thing. I cannot understand why a
person fleeing a country because they are afraid for their life would then go
back to the very country where they were fearing for their life. To me, if you
wanted to avoid all of that, then approach Immigration and apply for a skilled
worker work permit that way, and then you do not have to worry about any of
Mr. Langlais: Provisions dealing with someone who has been granted
refugee status returning to their home currently exist in the Immigration and
Refugee Protection Act we have at the moment. These provisions mean that anyone
returning for reasons other than the permitted ones causes the status granted by
the board to lapse. Currently, it is seldom, if ever, used, to my knowledge. My
colleagues could confirm that.
What we are heading towards is a situation whereby someone in the designated
category leaves the country for humanitarian reasons or in an emergency will
lose his or her status. We have two systems depending on whether or not people
arrive legitimately in a designated country, if they come from a designated
country or not. Why should one lose status and the other not?
Secondly, there is a big problem in that the benefit that Canada provides is
certainly permanent residence. Five to eight years can easily go by before
families can be reunited. That is a very long time. Is it humane to keep
families apart for that long? That is the basic question. The Barreau du Québec
is strongly against any restrictions to family reunification that might
contravene article 10 of the United Nations Convention on the Rights of the
Child. As things stand, separating families could violate that article.
So, in terms of your first point, I agree with what has been said, that
Canada has no obligation. But, when you think about it, there is more to be
Ms. Mendelsohn Aviv: I want to bring in some clarity. I feel like we
have been talking a lot about this hypothetical person who goes back to their
country of origin. That is almost irrelevant to Bill C-31. None of the
provisions that we have been talking about — the designation of groups, the
designation of mass arrivals, the discrimination, the detention, which have to
do with the inadequate process, the lack of appeal and the very short timelines
— none of that is in relation to a person who has gone back to their country of
origin at any point along the process.
There is a piece, as Mr. Langlais said, that addresses that in our current
immigration act. Most of what Bill C-31 is doing, the vast majority of it, is in
relation to people who arrive in Canada and say, "There is danger in my country
of origin. I cannot go back. I want refugee status." Some of them will face an
inadequate process and be sent back potentially. Some of them ultimately may be
recognized as refugees; nonetheless, they are going to be detained arbitrarily
as a group, so on. Most of what we are concerned about in Bill C-31 has nothing
to do with this piece of it. I want to put things in perspective and in
proportion. Thank you.
Senator Verner: I have one comment. Mr. Langlais, when you say that
families cannot be separated, the decision to do so was not the Government of
Canada's. In this whole process, I feel that the individuals made the decision
to do that.
Senator Merchant: I will deal with something a little bit differently
with regard to irregular arrivals. Mr. Wlodyka and Mr. Goldman touched on the
costs. We have a system that is very costly. The Australian experience is that
holding them or treating them the way that we do has not acted as a deterrent.
The supplementary estimates tabled in Parliament in February 2010 revealed that
the Canada Border Services Agency spent over $22 million for 492 detentions from
the MV Sun Sea.
Mr. Wlodyka said that we have a very expensive system. You have also had some
concerns that there is not enough money in the provincial treasuries to help
these people with services such as lawyers and hearings. Are we misguided in
treating the irregular arrivals differently than we treat other asylum seekers?
What do you see as a remedy? Many of you have talked about the costs.
Mr. Wlodyka: When we are dealing with irregular arrivals, we have to
understand that these people have engaged criminal organizations to get them
here; so this is a fundamental thing. It is not just somebody getting a false
passport and coming here on a plane. They have engaged a large criminal
organization. It is difficult to prosecute people if they are not here. Usually
the profiteers are in a third country. We have to use methods to discourage
people from using that kind of system.
One way of doing it, obviously, is to face the prospect of detention if you
come by way of a ship. If you can have an expedited refugee determination
system, the people who are genuine refugees who are willing to take that risk
will be pulled out of the system; but there has to be a deterrent. Another way
of deterring the use of this kind of irregular activity is to make the overseas
process more transparent so that people do not end up waiting two, three or four
years at a visa post abroad to get designated as a refugee so they can come to
Canada. We have to look at the whole global thing.
Other people are using it simply to come to Canada, expecting that they will
be tied up in a backlog long enough to be able to establish roots on
humanitarian and compassionate grounds. A lot of people who came on boats, the
most recent arrivals, already had family here in Canada who basically funded
their trip here through the criminal organizations. They are able to post bonds
and obtain lawyers for them. You have to look at the reality of the situation.
We cannot have these people doing this. We need to put deterrent mechanisms in
place that show there is a cost for them to do this. The vast majority of
refugee claims by irregular arrivals, and I do not have the up-to-date
statistics, have been turned down. The Canadian taxpayer has funded $22 million
for a lot of the cases that are not successful refugee claimants.
You have to look at this issue globally and understand that the minister has
a tough job. He has to make a designation based on criteria around who is an
irregular arrival and who is not. He will have to use the criteria set out in
the legislation. If he does not, that order he makes could be challenged in
court. Remember, if it is based on trade agreements with a third country where
there may be some military considerations, it is an irrelevant consideration.
That person could challenge that order in court as it applies to him.
The minister will be under the gun to make decisions that are justifiable in
law as reviewed by a court, which ultimately might be the case. However, you
have to deter people from doing this. If we do nothing, there will be more
boats, more backlogs, and we will achieve nothing. We will be back to square
one, and nobody wants that.
Mr. Goldman: Thank you for the question, Senator Merchant. I think it
is very important that this committee understands what we are really talking
about. Mr. Wlodyka said it is not just two people who jump on a plane with false
passports. Unfortunately, that is not correct.
A provision of the proposed law, clause 10 of Bill C-31, proposes to amend
section 20 of the Balanced Refugee Reform Act. The minister may by order, et
cetera, designate as an irregular arrival in Canada a group of persons. "Group"
is defined nowhere. A group could be two persons, at least according to the
dictionary. If you as a committee believe that the intention is just to
designate groups of 50 or 100 or 25, send it back to the minister and say,
"Please be clear that you are talking about a group of a substantial size." What
does this group of two people or more have to do? Well, the minister has to be
of the opinion that the examination of a number of things, including their
identity, cannot be conducted in a timely manner.
With all due respect to Mr. Wlodyka, two people who jump on a plane with
false passports, whether from Syria, Iran, Eritrea or another human rights
abuser of your choice, could be designated with all the drastic consequences
that you have been hearing for the last hour and a half: mandatory detention, no
family reunification for five years, no appeal, and so on. It is very, very
important that we be clear what we are talking about.
Ms. Mendelsohn Aviv: I want to address this issue that we must deter
people from coming. That was Canada's feeling many years, many decades ago. The
world community got together and passed a refugee convention saying that we must
do things differently. If people escape danger, then we must take them in. We
must exercise our humanitarian abilities and rescue people from danger when we
are able. If a few hundred people come to Canada desperately in need of safety
and we have a process under our law, as we would have under Bill C-11 had it
been passed, then we must take them in, and we do not need to mistreat them in
the process. We do not need to deter people who are escaping danger. There is no
requirement, there is no need and there is no crisis, as has been stated.
Senator Jaffer: I want to clear up something that was said by Mr.
Wlodyka about visa officers. I know he did not mean that, but I want to ensure
that none of us in this committee think that all visa officers are —
The Chair: Of the nature described.
Senator Jaffer: Yes. I have worked with hundreds of visa officers and
we can be very proud of them. A visa officer saved my life, so I have a lot of
respect for visa officers.
I will ask for very short answers, and it does not matter who answers my
A 17-year-old child comes to Canada under irregular arrivals, so he is a
designated foreign national. He gets detained, has a 14-day review and is given
six months in jail. Are we breaching the Convention on the Rights of the Child?
Ms. Mendelsohn Aviv: Yes, a child is anyone under the age of 18. They
do not even have to be 17; they need only appear 17. They might be 15.
Senator Jaffer: I have real concern about the detention, especially of
the unaccompanied child. Even Australia and the U.K. have stopped that. France
has an amazing program for unaccompanied children. Yet, we are detaining those
children. We will not give them permanent residence or sponsorship for five
years, which is punitive. The convention says you are not to punish. I am
convinced that the courts will not uphold this. It is punitive; it is treating
people differently. For the record, what convention are we breaching?
Ms. Mendelsohn Aviv: With your permission, senator, I would like to
talk about what it will cost us financially, if Canadians are concerned about
The Chair: Could you first answer the question that was asked? If we
have time for additional information, we may go there, but we are getting into
the last segment of this hearing and the senator asked a specific question.
Could you address that question?
Ms. Mendelsohn Aviv: Arbitrary detention is prohibited under the
International Convention on Civil and Political Rights.
Senator Jaffer: What about sponsorship, reunification of family?
Mr. Goldman: It is covered by both the International Covenant on Civil
and Political Rights and the Convention on the Rights of the Child.
Senator Jaffer: My next question is on humanitarian and compassionate
application and the pre-removal risk assessment. We know that for hundreds of
reason, none of which are the fault of the refugee, their application can be
turned down. We had the humanitarian convention and we had the pre-removal risk
assessment. Now they have to choose. If they choose the hearing route, you have
to wait for one year to learn whether they can do the PRRA. I have great
concerns about that.
Mr. Wlodyka: This is exactly the point I was making. Are we dealing
with an immigration system or a refugee determination system? I find absolutely
nothing wrong with having that choice. If you choose to go on humanitarian and
compassionate grounds, then that is the way you should go. You can make a
humanitarian application in Canada or outside of Canada, but refugee
determination is for people who genuinely fear persecution. You need to make
Where the issue is problematic and where I made that comment is in the
question of legal aid and proper funding so that refugee claimants can make an
informed choice on which way they want to go and have access to lawyers and that
kind of thing. If you do not have that in place, the issue becomes more
However, in principle I believe that refugee determination should be a system
for refugees, people who fear persecution. If you are raising humanitarian and
compassionate concerns, that is not for refugee determination. If we end up with
both in the stream, we are back to developing a huge backlog, encouraging people
to use irregular arrivals, not because they have any fear of persecution but
they will be tied up in the backlog and can use that backlog to develop roots
here and have family here, hoping that at the end of the day they will be able
to come to Canada on humanitarian and compassionate grounds. What about all the
other people who followed the system and applied offshore? These people become
queue jumpers and are not refugees at all. In fact, as with the latest ship,
most of these people are being turned down and the Government of Canada has paid
$22 million of taxpayers' money.
Senator Jaffer made a comment about visa officers. I have only been speaking
about those visa officers with whom I have had personal experience from
attending interviews. I am not suggesting that all visa offers act the same way.
Mr. Goldman: As to the acceptance rate for people who arrived on the
Sun Sea, I do not have the statistic. I understood that the acceptance rate
was high. Since Mr. Wlodyka does not have it either, I would strongly suggest
that the committee get that information if you are going to take that into
account in your deliberations.
In terms of the post-claim recourses, the humanitarian and compassionate and
the pre-removal risk assessment, the Barreau du Québec's main concern is that
there will be no avenues for any type of review for many claimants.
Clause 36(2) of Bill C-31 creates a list of seven exceptions of groups that
will not have access to the Refugee Appeal Division. We will finally, after
decades of talking about it, have a Refugee Appeal Division of Canada, yet it
seems that perhaps the majority of claimants will not have access to it.
Tied with that is that those same claimants who do not have access to the
Refugee Appeal Division will also not have access in any effective manner to the
Federal Court. Mr. Wlodyka said that is no big deal, that if you do not have a
stay of removal automatically, you just go for a stay. This is getting a bit
technical, but to put together a stay of removal at the Federal Court requires
many hours or days of procedures. It is a very heavy thing and usually is not
covered by legal aid. It is very expensive and most people will not have access.
Many people under 36(2) will not have access to the Refugee Appeal Division.
Tied in with that, they will not have access to the Federal Court. Also, due to
the way the law is worded, they will not have access to a humanitarian and
compassionate application. It is true that that does not cover the same material
as a refugee claim. It covers best interests of the child, family ties and so
on. They will not have access to the pre-removal risk assessment, so the checks
and balances that were in the Immigration and Refugee Protection Act that were
supposed to continue in the Balanced Refugee Reform Act are virtually all being
removed with Bill C-31.
Senator Jaffer: I want to talk about the irregular arrival where, for
administrative reasons, a person can be held. The impression is sometimes left
in committee that we are talking about a few, a maximum of 1,000 boat people.
Two per cent came that way last year.
I am talking generally about people who come here — for whatever reason — and
are classified as irregular arrivals and will therefore be designated foreign
nationals and will not get permanent residence for five years and will not be
able to sponsor their families for five years. This is a much bigger class than
we can imagine, and this will lead to many problems.
Can you please speak about that?
Ms. Mendelsohn Aviv: One of the problems is that people will be held
in arbitrary detention and it will cost Canadians a huge amount of money, both
in keeping people in detention and in paying them reparations and compensation.
The U.K. recently paid out 2 million pounds for detaining only 40 children and
youth, in some cases for less than one month. We are talking about detaining
people for six and a half months.
We also have a problem as a result of designating people that they would also
be held on stricter grounds of detention than any other category of people.
Therefore, where other people have to reasonably cooperate in helping to
establish their identity, these individuals have to proof-positive establish
their identity to the satisfaction of the minister, something that may be
difficult to do when you are thousands of miles from home. It might not have
been safe for you to travel with travel documents. Perhaps your human rights
abuser regime does not give you travel or identity documents that you can use.
Perhaps the people in your home country are also in danger and you cannot reach
them, or they are sitting in a refugee camp and you cannot reach them.
These stricter grounds of detention apply to these so-called irregular
arrivals, who are simply people who have tried to find safety.
Senator Eaton: The witnesses have talked a great deal about mandatory
Mr. Wlodyka, tell me about detention and children. Are children separated
from their parents? Are they not fed or schooled? Is it like going to jail? What
does detention involve? I do not know.
Mr. Wlodyka: From my limited experience in dealing with the detention
of children, there is still the principle that the detention of a child is a
last resort. You have child welfare agencies coming into the picture to look
after the children.
Senator Eaton: Are they separated from their parents?
Mr. Wlodyka: They can be. Sometimes arrangements are that they are
together. I believe these cases are dealt with on an individual basis. Each case
may be very different, but we are talking about arbitrary detention. Do not
forget there is an integration division member who will be dealing with the
detention at first instance. If the identity is established, the minister
himself or his representatives will be able to intervene to expedite the release
The system is really designed to deter people from putting themselves into
this position in the first place by using other means. You cannot have a
foolproof system. If you take away some of the deterrents, then we are back to
square one again. It is not an easy solution.
Senator Eaton: I do not disagree with you at all. I am picturing
myself running from a country where I am in danger; I can be persecuted. I have
two little kids. The detention centre in Canada is reasonably clean, I am
getting three squares a day and no one will shoot me. Is that so terrible, and
how long are these claimants detained, on average?
Mr. Wlodyka: The criteria depend. At the present time, with the
immigration division member, the judicial review is normally required within 48
hours. Then it is seven days, 30 days and then 30 days as it goes on. There are
some presumptive provisions in the legislation in terms of identity; the
minister has to show reasonable effort to establish the identity of the
individual. As long as the minister is making a reasonable effort to establish
identity, then that is sufficient to keep the person detained.
At the point in time where the immigration division member is no longer
satisfied that the minister is making reasonable efforts to establish the
identity of an individual, the immigration division member can order release on
terms and conditions.
That immigration division member will still be there and will still be able
to order release on terms and conditions, if the minister does not justify the
efforts that are being made to identify these individuals.
The immigration division members are public servants. They are very well
trained. They have bent over backwards in terms of facilitating the releases of
individuals. Many times, the ministers have to go to Federal Court to get stay
orders. They are very cognizant of their responsibility, especially with
children and parents, to facilitate release at the earliest available
opportunity. No one wants to keep children in detention.
The Chair: I think you have answered the bulk of the question and we
are running out of time.
Senator Martin: I wanted to put something on the record because some
things were mentioned. I want to add additional information regarding the
five-year ban and the concern that we have of what we will do with these
refugees. In terms of the benefits that they are entitled to, I asked this
question specifically to the officials because it is a concern for all Canadians
that they will get the protected-person status, that they have the benefits of
the Interim Federal Health Program, and that they will receive a work permit and
social assistance. As a Canadian society, we are taking these measures to ensure
they are given these benefits.
I did ask the minister's office regarding very specific travel for some of
these refugees. Case by case, the minister will take into consideration and
provide things under exceptional circumstances. As you say, we are talking about
exceptional cases. However, again, there are these exceptions that the minister
is aware of.
In regard to this whole system, every claimant is entitled to a fair and
independent hearing with the IRB and they will have access to one recourse
I have one question for Mr. Wlodyka. With the IRB decision maker who is
interviewing and reviewing a case, from your experience, if there are claimants
who are too traumatized to speak, the documents are difficult to get a hold of,
et cetera, have there been exceptional cases where extensions have been given in
these exceptional circumstances so there is that slight flexibility within the
Mr. Wlodyka: Yes. As a former board member, I sat on refugee cases. If
the claimant is traumatized and not able to give their evidence, you will
postpone the case. If you do not, the Federal Court will set aside your
decision, anyway, whether you have access to the immigration RAD or not.
The answer to the question is that the system with the rules in place from
the refugee board will be flexible enough to allow for situations such as that
and to make some accommodation. In most cases, it will not be necessary. Most
refugee claimants are able to give their evidence. The initial decision makers
will be public servants and not GIC appointees. The GIC appointees will be with
The public servants will be selected through a competition system very much
like the immigration division members. I have ultimate faith that the public
servants will do a very good job of making that first important decision. It is
really the critical thing to make that first hearing fair and make the decision
right in the first instance. Then you do not need to worry so much about the
appeal mechanism. If you get it right the first time and are able to select the
refugees and pull them out of the system, then everything will be done.
In the end it needs to be fair and expeditious, because if you have people
languishing a long time, we are back to square one.
The Chair: I think you covered the question in terms of what was
I wanted to give Senator Jaffer a chance to have an additional question if
she has a specific one. These have been debated considerably, Mr. Goldman. If
you have a quick, precise input on either of the last two issues, please go
Mr. Goldman: Mr. Wlodyka said that postponements are rarely necessary,
but he is talking about that system where it takes two years to get a hearing.
Our fear is that if you have a hearing within 30 or 45 days, vulnerable
claimants will not be able to testify, will not have their documents, and so on.
The Chair: We understand that point clearly.
Mr. Langlais: Senator Martin, when you talk about the benefits that
the granting of status provides, you are referring to the services and coverage
provided under the interim federal health program. I am sure that you are aware
that this was amended very recently. It has been cut back to the point that
most, if not all, of the health care professionals across Canada are now
complaining about it; they feel that the benefits provided to people covered by
the program have now largely been lost.
Senator Jaffer: There may have been a misunderstanding that board
members or decision makers have an ability to decide whether someone goes to
The way I read proposed section 55, it specifically says that for a
designated foreign national there will be mandatory arrest and detention. There
is not a choice. It is mandatory.
Senator Eaton asked a good question: What are the conditions of people who go
to jail? Yesterday we were told — and my colleagues will correct me if I am
wrong — that there are only 299 detention places. We were also told that a lot
of people, at least in my province, are guests of the provincial government,
which means that they go into prisons. Can you please expand on that?
Ms. Mendelsohn Aviv: I am not very familiar with that, but I do know
that on the MV Sun Sea, families were separated because the facilities
were separated along gender lines.
Children who happen to travel with the parent of the same gender may wind up
together; otherwise, there may well be separation. From the Australian situation
we know that children who end up in detention suffer severe mental health
consequences, including enormous risk of self harm, suicide attempts, and so on.
The Chair: We are running a discussion here. I want to get the answers
to the questions on the record.
Ms. Mendelsohn Aviv: There is something from the detention; this has
My understanding as well is that many people will end up in jails, that the
immigration detention facilities are separated along gender lines and that there
is every reason to be concerned about putting children in detention under any
The Chair: Thank you.
I will make some observations now. It is obvious that this is a very
challenging area. It is clear that all the persons who have spoken have a deep
and abiding interest in this area. It is obviously complex. We realize that
society has great difficulty dealing with a range of issues for which there are
not simply A or B choices and that we are dealing with human beings under very
It is also clear that people who have looked at these issues for a very long
time can reasonably wind up with very different views on the appropriate way of
dealing with these issues and, indeed, the meaning and interpretation of rules
that we develop as we move forward.
It is the task of my colleagues and of me to chair my colleagues in reaching
conclusions on a bill that is brought forward with the intention of moving these
very important issues forward. We have heard certainly that time is an important
factor, as is the way in which people are considered during the time that it
takes to deal with these issues.
I want to thank the witnesses who have appeared before us here today. I think
it is obvious that you put forward your genuine and firm views on all of these
matters. You have provided us with a range of diverse views on these critical
issues and some firm examples of the way to look at some of these issues.
With that, on behalf of my colleagues, I want to thank you.
Honourable senators, in this next phase of our afternoon hearings we have
four different groups presenting. From the Centre for Immigration Policy Reform
we have Mr. Martin Collacott, who is the spokesperson. From the Canadian
Taxpayers Federation, we have Mr. Gregory Thomas, who is both a federal and an
Ontario director. From the Canadian Council for Refugees, we have Mr. Francisco
Rico-Martinez, who is a co-chair of the Inland Protection Working Group, and Ms.
Gina Csanyi-Robah, who is a member. From the Rainbow Refugee Society, we have
Ms. Chris Morrissey, who is the chair, co-founder and a volunteer.
I welcome you all to this meeting, and I will start with the Canadian Council
Francisco Rico-Martinez, Co-Chair, Inland Protection Working Group,
Canadian Council for Refugees: Thank you very much for allowing us to be
The Canadian Council for Refugees is a non-profit umbrella organization that
is committed to the protection of the rights of refugees in Canada and around
the world. We have 175 organizations that are members of our umbrella
I will synthesize the concerns we have about Bill C-31 into eight points. The
timelines that deny refugees a fair chance to prove their claims will create
more people without status in Canada because they will not be able to access the
system but they decide to stay here. The process for designating certain
countries as "safe" eliminates an expert, independent advisory body, which is
going back centuries in the discriminatory treatment of refugees and poor
immigrants in this country.
The bill gives the government extensive powers to imprison refugee claimants.
The cost of detaining refugees doubles the savings to Canadians that will happen
due to the cuts in health care for refugee claimants.
The bill, even with the amendments, still makes permanent residency status
temporary for some people. This is a violation of the international obligations
The reference of the Minister of Immigration to bogus claims is an egregious
misrepresentation of the reality of refugees. The law is not technical any
longer. It is an ideological aggression against the vulnerable people.
Why is it so bad to allow rejected refugee claimants to have access to
humanitarian and compassionate applications? It is just an expression of
humiliation against the most vulnerable, in my opinion.
Canada's humanitarian safety net is gravely weakened with the bill. Do not
pass this bill, please, because this is going to change the lives of many people
who work around us. Please go back to the Balanced Refugee Reform Act, which was
passed with the unanimous approval of Parliament. You would just have to make a
few changes to that act to make it fairer and it will be okay.
Now I would share the floor with the Roma community, a member of the CCR,
which is one of the refugee communities in Canada most affected by this bill.
Gina Csanyi-Robah, Member, Canadian Council for Refugees: Honourable
senators, I am the current executive director of the Roma Community Centre based
in Toronto. I am a teacher for the Toronto District School Board. I have
recently had the honour of receiving the Queen Elizabeth II Diamond Jubilee
Medal for my work on behalf of the Roma community for the past few years.
Roma refugees have arrived in Canada en masse without support available to
them. The vast majority of Canadians do not know who the Roma community is
unless we identify ourselves as Gypsies, a name that was given to us during the
medieval time period in Europe when we were mistaken as Egyptians by the British
Empire. Since then, "gypsy" has become an umbrella label for groups that exhibit
similar stereotypical characteristics that have historically been attributed to
us — the one authentic diaspora of people originating from the Indian
subcontinent in the 10th century.
Many people are horrified to learn about the treatment that we have endured
as people for the past millennium in Europe, with mass killings, extreme and
cruel marginalization from society and enslavement for 500 years. This includes
a terrible, ugly history of losing almost 2 million lives during the Holocaust.
We have been left out of the history books.
Since the fall of the Iron Curtain across Central and Eastern Europe, ethnic
nationalism has emerged with a vengeance. Currently in countries such as
Hungary, Slovakia and Czech Republic there is endemic discrimination that many
international human rights bodies have described as apartheid-like conditions.
Despite what other people have told you, there is enough discrimination to be
There is a fatal war of hatred being waged against the Roma. Hate is killing
the Roma people, mentally, physically and emotionally. Children's spirits are
being crushed at the hands of a portion of the ethnic majority population in
these countries. At least 1 million ethnic Hungarian Magyars have voted for an
openly racist extreme nationalist right-wing neo-Nazi political party whose
members currently have 47 seats in the National Hungarian Assembly. This party
is called the Jobbik party. It stands for a movement for a better Hungary. The
rhetoric and language it uses have really targeted the Roma community. Its
rhetoric includes public announcements of the leader Gábor Vona slapping
mosquitoes and comparing the Roma community to mosquitoes, and the way to get
rid of them is to kill them.
Right now there are high concentrations of Roma in places such as Miskolc,
where the U.S. State Department documented in 2010-11 human rights reports that
significant unabated brutality is inflicted upon the Roma community by police
officers and members of the Hungarian guards that are the paramilitary arm of
the Jobbik party.
Miskolc is also where Minister Kenney's office recently distributed info
pamphlets discouraging Roma people from seeking asylum in Canada.
Human rights only exist on paper in Hungary, with very little implementation
and enforcement. For the past two years, I have been trying to share this
information with the Canadian government about what is taking place and why
people are coming to Canada to seek asylum.
I will tell you that the Roma community has been nothing but shamed and
humiliated across this country for the past three years. We have been
characterized as a collective group of criminals. This all stems from one case
that took place in Hamilton, Ontario, involving five victims and one family that
have been put in prison for 10 years now.
Across Canada, we have been looked at as people that have come to take
advantage of the welfare system. At the Roma Community Centre, people who happen
to survive from welfare need help from food banks to survive. They are not
benefiting by collecting social assistance, and when people do withdraw claims,
they are giving up the right to receive welfare.
People are characterized as taking advantage of the health care system, but
like other Canadians, Roma people have to wait almost six months for a family
There is overwhelming documentation of persecution against Roma in Europe. At
the very least, our country can treat the Roma with compassion, respect and
dignity while the IRB decides on the validity of their claims without political
interference or manipulation of statistics.
The Roma community in Canada and countless Canadians do not want the creation
of a designated safe country list, and the Roma people hope with all our heart
that you will reconsider having this bill go through, if you choose to do so,
without at least having an independent human rights panel of experts making this
Please, we need an objective, independent decision-making panel deciding
which countries will be designated as safe countries and which will not be
considered safe countries.
Second, when I came to testify in the House of Commons at the Standing
Committee on Citizenship and Immigration, at that time there would be a 12-month
bar from Bill C-31 for people from safe countries from applying for humanitarian
and compassionate applications as well as a federal appeal.
Since I testified, two days later Minister Kenney's office raised that bar to
36 months. I want to plead with this committee that if you do allow this bill to
pass, please bring it back at least to the 12 months that was originally
proposed. I do not know why we are being punished all of a sudden with a
36-month bar. Three years is way too long to be able to review cases when we
have people coming into the Roma Community Centre with denied applications.
Sometimes they are being denied because they are not believed to be Roma. We
have seen many, many mistakes where we cannot allow three years to go by.
I am happy to answer any questions that you have and give personal stories
from the Roma community.
Chris Morrissey, Chair, Co-founder and Volunteer, Rainbow Refugee Society:
Good afternoon. I am pleased to be here to present to you today.
Just a little background: Since 2000, Rainbow Refugee has been supporting
people both inside and outside Canada who are making claims on the basis of
sexual orientation and gender identity. A little over a year ago, Minister
Kenney initiated a blended program with Rainbow Refugee Society to encourage the
sponsorship of LGBT refugees from outside Canada.
While we agree with many others with the necessity to decrease the refugee
processing times, we cannot support many of the changes proposed in Bill C-31.
In the time available, I will focus on only two aspects of the bill, which
have already had much airing today.
First, with respect to the designated country list, we are seriously
concerned that the centralization of the authority in the hands of a minister of
immigration, no matter what political party she or he belongs to, sets a
dangerous precedent. It allows decisions to be coloured by politics, economics
and international relations rather than human rights.
The criteria for determining whether a country is safe include that it is
democratic, has an independent judiciary and civil society organizations. South
Africa, for example, meets all those criteria and, in addition, included
same-sex marriage in its constitution in 2006. This appears to be the most
progressive country on the African continent with respect to sexual orientation
and gender identity. Will it be on the designated country list?
Human Rights Watch has done an expensive report on the experience of lesbians
and trans men, acknowledging they experience sexual violence and are persecuted
because of their sexual orientation, and this is not taken seriously by the
South African authorities. They report that there are 10 cases a week in which
lesbians have been targeted for corrective rape and police have done nothing to
investigate. Clearly, South Africa is not safe for lesbians and trans men.
However, there is no guarantee that a lesbian or trans man from South Africa
will have a positive decision at their refugee hearing; yet, if they were to
lose their cases, no appeal or any other process would be available to them
before their removal to a country where they would face cruel and unusual
punishment simply for being who they are.
It is unconscionable that one person have that much power over another's
life. Members of our communities, as well as other vulnerable people, will be
disproportionately affected by the lack of an appeal. All individuals must have
access to an appeal. Fairness cannot and must not be sacrificed on the altar of
The second point we wish to focus on is the unrealistic timelines identified
for the filing of the basis of claim and for the perfection of the appeal to the
Omal came from a country where homosexual acts are criminalized. He was being
threatened and beaten by a police officer who was the brother-in-law of his
boyfriend. He was beaten up and injured. Once in Canada, he was glad to be in a
place where he experienced safety, but he had no idea what to do. Eventually, he
came to the next Rainbow Refugee monthly drop in. It took him almost a year to
share with us how his father had attempted to burn down the family home with him
and his mother still inside because of the shame of his son being gay. For
obvious reasons, he did not report any of this to the police. He was afraid to
go to the hospital because there were always police in attendance, so he went to
a local healer rather than a doctor. There were no official records. He had to
rely on whatever information he could get.
With no appeal, because there is no RAD currently, he was sent back. He is
still in hiding. It is possible that this will occur for anyone from a so-called
safe country, which was the decision made in Omal's case. He came from a safe
country. It is clearly not true.
Sexuality is very intimate and seldom talked about, never mind to strangers,
especially by those who have kept their sexual orientation hidden as a way of
staying alive, out of prison or from the wrath of their own families. As with
Omal, LGBT individuals often do not know that it is possible to make a claim on
the basis of their sexual orientation. After all, these grounds are hidden under
"members of a particular social group."
The priority of LGBT individuals is to escape persecution. One of our members
escaped over the roof of houses when police arrived, having been called by a
neighbour. He escaped using a smuggler while there was a warrant out for his
arrest. As we can see in Omal's case, it is frequently difficult to get medical
and/or police records. In some cases, they do not exist or it is extremely
difficult to access them because this would cause them to face serious
The first decision-maker, the decision-maker of the first instance, should
have the best information possible in order for the system to be fair and
efficient. Fifteen days is not adequate to file and perfect an application. At
least, maintaining the current 28 days, this does not significantly reduce
timelines, and it provides a much more reasonable opportunity for a fair
hearing. Because of how homophobia and trans-phobia manifest themselves, many of
the changes in Bill C-31 will disproportionately impact LGBT individuals.
You, the Senate, are the last government officials who have the power to make
the difference in the lives of many. The vast majority of asylum seekers and
refugee claimants are not bogus or queue jumpers, but rather desperate people
looking for freedom. Thank you.
Martin Collacott, Spokesperson, Centre for Immigration Policy Reform:
Thank you chair and members of the committee for inviting me here today. I will
not try to comment on all aspects of the bill in the time available to me, but I
will certainly answer questions on other parts.
I believe the various elements make good sense and they constitute at least a
beginning in terms of dealing with the mess that our refugee determination
system has been in for more than two decades.
These proposals did not come out of the blue. They are designed to deal with
very concrete and real problems. One provision of the legislation that should
have been in place years ago is the one that will give the government authority
to designate safe countries of origin. That will have an impact on the hundreds
of Americans who claim refugee status every year in Canada, plus smaller numbers
of Brits, Australians, New Zealanders, Swedes and so on.
Therefore, it is high time that we put a system in place that reduces to a
minimum the time and resources spent on such claims and bring our practices and
policies in line with those of other countries. I think the procedures in the
bill for doing this reflect a good balance of qualitative and quantitative
I also strongly support the measures in the legislation designed to deter
human smuggling. The importance of this can be seen in the recent experience of
Australia in this regard. After a large number of boatloads of asylum seekers
organized by human smugglers arrived in Australia in the late 1990s and early
2000s, the government there introduced a policy under which claims of such
arrival would only be processed outside of Australia and not be allowed to
arrive on Australian soil. In Canada, even if their claims were turned down,
they could delay their removal with an almost endless series of appeals and
reviews that could go on for years.
As a result of that policy, hardly any boats arrived for several years. In
2007, however, the Australian Labor Party was elected to office. The new Prime
Minister, Kevin Rudd, decided he was going to make Australia a kinder, gentler
place. He made it possible again for asylum seekers coming illegally in boats to
be allowed in Australia. In consequence, 314 boats carrying asylum seekers have
arrived in Australia since then. An estimate last week by an Australian
newspaper put the cost to Australian taxpayers of these arrivals at $1.1 billion
for the current financial year, $2.3 billion over the past three years. The
opposition estimated it is $4.7 billion for the past three years or about a
quarter of a million dollars on each asylum seeker.
Our costs may be somewhat lower, but former Deputy Minister of Immigration
and former secretary of the Treasury Board Jack Manion estimated before this
committee in 2001 that this system was costing us several billion dollars a year
By comparison, if we look at how much money we give to the UNHCR to take care
of people in refugee camps, it comes to about $2 or $3 a year per person. There
is a bit of a discrepancy. Why, you ask? There is not a powerful lobby pushing
for the people in the camps. There is a powerful lobby that has been persistent
and successful in pushing for generous treatment of claimants in Canada.
What the government is proposing makes good sense. However, there is one
massive item that is lacking in the legislation, and that is a robust system for
designating safe third countries as distinct from safe countries of origin.
What is a safe third country? In the 1950s, when the United Nations refugee
convention was drafted, Canada had no expectation of becoming a country of first
asylum for any significant number of refugee claimants. We resettled 180,000
displaced people after World War II, took thousands of people after the
Hungarian uprising in 1956, Czech in 1968, the Asian Ugandans in the early 1970s
and Indochinese people in the late 1970s. I had in-laws among the boat people,
so I am familiar with that problem.
We never expected to become a country of first asylum because of our
geographical location. We expected to be a country of resettlement. To get here,
the vast majority of refugee claimants have to travel through other countries.
Under generally accepted international rules, they should have sought asylum
and, indeed, they could have and should have sought asylum if their primary
purpose was to reach safety. Many asylum seekers who already reached safety in
countries such as the U.K., France and Germany, however, decided they would move
on to make claims in Canada because of our more generous benefits. This practice
is known as asylum shopping.
We had a chance to bring this problem under control in the late 1980s when
the legislation for the Immigration and Refugee Board was being drafted. We had
provision in that for establishing lists of safe third countries where people
could have made claims, but there was a persistent lobbying by the refugee
advocates to convince the then Minister of Immigration there was not another
safe country in the whole world but Canada.
Instead of having a moderate number of people accessing the system that we
could process thoroughly, we were deluged and have been ever since. Right now
there is only one country that has been designated as a safe third and it is the
United States. Other countries have quite a long list of safe third countries.
Unless we establish such a list, we are not going to be able to really manage
the system properly. There are some issues involved in that. In the IRPA
legislation, it said that a consideration would be whether we have an agreement
with another country as we do with the United States. I do not think that
legislation binds us the way it is worded to having such an agreement. We can
consider such an agreement. If it does bind us, we can change the legislation.
In conclusion, I urge the government to put in place a comprehensive safe
third country list as a matter of priority and do whatever is needed to make it
operational. In the meantime, Bill C-31 is a move in the right direction. The
critics will claim that it constitutes a step backwards by Canada as a
compassionate and welcoming country. I do not think this is the case at all.
With its passage, we will still arguably be the most generous country in the
world in terms of our treatment of refugee claimants. At the same time, we will
have made major progress towards reassuring Canadians that we have a fair and
expeditious system that is not open to widespread abuse. Thank you.
Gregory Thomas, Federal and Ontario Director, Canadian Taxpayers
Federation: Thank you senators and members of the committee. My name is
Gregory Thomas. I am the federal director of the Canadian Taxpayers Federation.
We are Canada's oldest and largest taxpayers' advocacy group with over 70,000
supporters across the country and offices across Canada. We have been active
since the early 1990s.
We are here because we welcome this legislation and the constructive
initiatives embarked upon by the Government of Canada to make Canada's refugee
system more effective in its overall objective, which is broadly supported by
Canadians, of providing refuge to the peoples of the world whose lives are
threatened in the nations where they live.
We believe that the evidence put forward for these reforms speaks for itself.
The current processing time for a refugee claim is 1,038 days, and so much of
this is taken up by processing claims that are spurious and fraudulent.
We know that in thousands and thousands of cases people make an initial
refugee claim and then do not even show up for their hearing.
We also welcome reforms such as the changes to the Interim Federal Health
Program which put refugees on the same playing field as ordinary Canadians.
I brought along a news clipping from Vancouver dated June 18, which was on
the weekend. It talks about health professionals who benefit from extended
health benefits, eye glasses and dental care in their collective agreements.
They are advocating for Canadian taxpayers to continue to provide these to
Yet, millions of Canadians do not have dental plans or access to free dental
care or access to eyeglass treatments. The existence of programs such as these
has the opposite effect to that which we all desire, to live in harmony with
refugees, by putting refugees on a higher level than ordinary, working Canadians
who are paying for this care.
We believe that these reforms are constructive. To cite one example, we
looked at the controversy surrounding family reunification claims and the
introduction of the 10-year super visa, and yet Postmedia News, Tobi Cohen,
reported in mid-May that since the introduction of the program, 4,400
applications for super visas have been processed within eight weeks of receipt,
and 83 per cent were approved. Here you have an area of social policy, the
unification of families, bringing elders and parents into the country in a way
that brings harmony to our nation, and here you have a practical reform that was
instituted by the government and has resulted in decisions being rendered in
thousands of cases in the space of eight weeks, with positive outcomes for the
applicants in over 80 per cent of the cases.
When you take the lure of other people's money, other people's money paying
for eyeglasses or dental care or extended benefits or whatever, you remove that
from the mix and get down to the basics of providing refuge to people, reuniting
families and dealing with humanity on a human basis like all other Canadians,
you eliminate so much of the controversy and strife surrounding these issues.
We believe that these reforms will save Canadians money. They will streamline
the process; we will get fair decisions and we will have more real refugees
being treated more fairly in a reasonable amount of time, and this will speak
well of Canadians.
The Chair: Thank you. I will open it up to my colleagues for
Senator Jaffer: Thank you very much for your presentations.
Mr. Collacott, I have known your work for many years. When you speak of
sponsorship, I am 100 per cent with you that we should be spending more money to
assess refugees abroad and spending more money on the UNHCR camps. I am pleased
to hear that the minister is going in that direction. He has agreed to have
2,500 more people come through that process. I would like you to elaborate on
how important our involvement in that process is, because you have real
expertise on this.
Mr. Collacott: I think it is important. Our money is well spent in
that regard. There is the question of how many should be resettled to Canada,
and I think Canadians in general strongly support the resettlement of a
reasonable number, and we select most of them with the help of the UN. They are
one group that might get the benefit of the health care, at least for the first
year until they get settled.
Mr. Thomas referred to certain provisions, and I have to agree with him. On
the whole, they are sound, especially government resettled and perhaps private
resettled refugees, because they have a sponsor here, and they might be able to
help out in that regard.
I think we should be giving more to the UNHCR if we could spend less on
massive numbers of claimants. Some are genuine, but many are not. That is the
problem. This is why this legislation has been put forth. We could spend more
money where it would be much more usefully used.
Senator Jaffer: The minister spoke about this yesterday. You are
experienced in this. When you say some more money, can you be more specific? You
spoke about Ugandan Asians, and I am a Ugandan Asian who was brought here. We
used to have programs when there were problems in a country that we specifically
brought a group of people, not resettled UN refugees, but we had a country group
program. I do not think we have that program any more. May I hear from you as to
whether you think that kind of program would also be useful, or has the time for
that program finished?
Mr. Collacott: I think on occasion the government has used that.
Someone mentioned earlier the Hindus, the Nepalese who had to leave Bhutan, and
we took several thousand. We took Karens from Burma, so from time to time those
programs do make some sense.
Basically, though, we should be taking most of our refugees from
resettlement. People who make claims in Canada often use people smugglers, not
just the mass arrivals. One RCMP expert estimated that 90 per cent of people who
arrive in ones, twos or more were brought in by a people smuggler. We should
emphasize help to UNHCR and resettlement from overseas.
Senator Jaffer: Ms. Csanyi-Robah, I really commend the chair and the
steering committee for inviting you, because we have heard a lot about the
Hungarian refugees. We also heard what you had to say, and I am sure it has left
an impression on us. Can you tell us whether our system has found people from
Hungary who are of the Roma, identified as Roma, to be convention refugees?
Ms. Csanyi-Robah: Yes, senator. Two large waves of Roma refugee asylum
seekers came into Canada. One was in the late 1990s, and one began in 2008. If
you go through all the different Central and Eastern European countries, you can
see that the vast majority of the refugees coming from those countries are
certainly members of the Roma community. I have gone through all of these
documents, and I have seen that since 1997 there have been close to 3,000 Roma
refugees accepted into Canada. In 2011, there were 167 Roma refugees accepted
from the people that managed to make it all the way through the system to the
time that they had their hearings. Yes, Canada is accepting Roma refugees and is
acknowledging that Roma are a persecuted people.
Senator Martin: Thank you for your presentation. My first question is
to you as well, and I want to thank you for your impassioned testimony. All of
us listened and are concerned about the plight and what is happening.
I am of the understanding with this bill that special consideration will
still be afforded to claimants that are identified as vulnerable, so every Roma
asylum claimant, even after the bill, will be given a fair hearing by an
independent official. That process will be there so that if there is a
compelling case for protection, then that will be afforded to the individual
case by case.
I know that you were talking about the DCO, designated country of origin, and
being very worried about that, but in the designation as well as in the overall
process going forward, every claimant will get a hearing, and case by case the
decisions will be made. Are you worried that people will not be heard in their
Ms. Csanyi-Robah: Yes. There will not be a fair process. There has not
been a fair process already. In 2008, when primarily Czech Roma refugees were
coming, there was an 80-plus per cent acceptance rate at the Immigration and
Refugee Board. Not long after that, when public discourse began about Roma
refugee claims being bogus and the language started to turn everyone to be
suspicious about Roma refugees, and then that unfortunate case happened in
Hamilton, the acceptance rate at the Immigration and Refugee Board dropped
within a month to zero. It remained at zero for approximately four months, an
entire quarter, before it slowly climbed back up again. Since 2009, there has
been anywhere between an 18 to 28 per cent acceptance rate of Roma refugees from
different parts of Central and Eastern Europe.
This definitely exemplifies — and there is academic data that supports this —
that, in fact, there has been interference in the independent decision-making
process at the Immigration and Refugee Board.
Second, under the new legislation, people will come and they will
automatically be predetermined and prejudged. The way I see it, you are being
judged to be coming from a safe country. When people come from a safe country
under the current legislation, Roma will have 15 days to submit a refugee
Some of the most educated members of our community have a difficult time with
28 days. We have asylum seekers that have come from the Roma community who are
engineers, politicians and academics, and these people have a very difficult
time being able to get their application in within 28 days, so I certainly do
not think that 15 days will be appropriate.
Second, it is very difficult to get police records and medical records
backing up the claims for the Roma community because it is difficult to make
police reports about people who will likely brutalize you for making the reports
to begin with. It takes time to apply for and receive these reports, and 15 days
is absolutely not realistic.
Then when people are not accepted as refugees, they will not have an
opportunity to access the Refugee Appeal Division. They will not have a chance
for someone to look over their claim and have that extra level of accountability
and oversight if they have been indeed turned down on their refugee claim. They
will be sent back before they have a pre-removal risk assessment, which is
critical, and definitely will not have the ability to submit a humanitarian and
compassionate application for a certain time period. It is not a fair process,
and it will be an even less fair process.
Mr. Rico-Martinez: It is not possible to do an assessment of how
vulnerable a person is in the time frames that we have right now. You can verify
that with the Immigration and Refugee Board. This is exactly the serious problem
they are having — how they will detect and identify vulnerable claims. They do
not have a clue. They say the amount of time does not allow them to do anything
like that. Your intentions are very good and you are taking vulnerable claims
the same way we take them, but there is no procedure in the law to identify
those claims as it stands right now.
Senator Martin: As I said, on a case-by-case basis, I guess I will put
more faith in the system in terms of the applications being considered.
You talked about numbers. I was curious; it seems that Canada is carrying
quite the responsibility of refugee or asylum claimants from Hungary, the Roma
people. For instance, if there were 4,400 claimants in Canada in 2011, only 47
in the U.S. and only 33 in France and Norway, I realize Canada is quite a ways
away. In terms of receiving 95 per cent of the claims of the Roma people of the
world, the numbers themselves really show this discrepancy. I do not know if you
want to comment on such numbers.
There are so many other member nations, and I am aware of the 10-year action
plan of the European countries, which are looking at this as a focus and a
concern. It is the responsibility of the member nations as well as the world,
but Canada is holding up 95 per cent of the overall claimants.
Ms. Csanyi-Robah: There is the Decade of Roma Inclusion that was
initiated in 2005 and was supposed to last until 2015, but it seemed more like
the decade of Roma exclusion rather than inclusion because things have actually
become much worse in the decade since the Council of Europe announced this
Many people have said that you could spend billions of dollars on initiatives
and come up with program after program, but none of them would be successful if
you do not deal with the core base of the problem, which is hate. It is a huge
problem. The hatred that leads to discrimination is a disease of society, and no
matter what program you create, it will not be effective until the root cause is
Roma people do belong to the European Union, but there is a pact between
European Union countries that says that a member of the European Union cannot
apply for refugee status in other European Union countries. Roma people can
travel to other European Union countries, but they can only stay for a period of
up to three months if they cannot demonstrate that they have a job.
Being Roma, it is very difficult — especially if you are identifiable as Roma
— to be able to secure employment. There is mass prejudice and stereotypical
beliefs that Roma people are disproportionately criminal, and no one wants a
criminal working for them. There is a vicious circle that seems to be impossible
to break, and that has been going on for centuries.
With regards to the United States, from what I understand, the United States
has a completely different refugee asylum process from Canada.
Senator Martin: There were 4,400 in Canada in 2011 and 47 in the U.S.
That is quite the contrast. Are you saying you are looking at Canada as the best
Ms. Csanyi-Robah: Could you repeat that?
Senator Martin: I said the numbers are shockingly different in that
there were 4,400 claimants in Canada in 2011 versus 47 in the United States. Is
that indicative of how you see Canada as the most generous system, perhaps?
The Chair: Is there a specific answer to the question as to why so
many come to Canada and so few to the United States by comparison?
Ms. Csanyi-Robah: Other than the fact that I believe the U.S. has a
completely different system and you cannot apply for refugee status in the
United States the way you can in Canada, but I am not an expert on that. Maybe a
person who has expertise in that area could answer that.
However, the Roma community is a very collective community in terms of
sticking close together. In 1997, when a significant number of Roma refugee
claims were accepted and families settled here in Toronto, specifically in the
Parkdale area, which now has the largest Roma community outside of Europe
anywhere in the world, people have been coming to where their families are.
People have been coming to where there is already a collective community
When people come over, it leads to a decision of where they will perhaps seek
refuge; they will go to where there is already safety and comfort, and that is
why I understand that the Roma community has established themselves in Toronto
more than any other place in the country.
In one building alone within Parkdale, on West Lodge Avenue, there is an
entire village of people that have resettled together because that is
characteristic of the Roma community during travel. It is a survival technique.
It has been a technique that has kept us alive as a community for a thousand
years away from our homeland. The community stays close together.
When a family arrives at an airport, there are usually three generations
together. On October 19 when there was this uproar of 100 Roma refugees, which
must be a significant sign of human trafficking, that was six families. That
night, an entire family, including grandparents, children and grandchildren,
slept on a street in Scarborough, Ontario, because there was no room in a
You have to know a little bit about the community to be able to understand
how they stick together and they build where they are already established.
Senator Martin: Are there very few Roma in the U.S.?
The Chair: I am going to Mr. Rico-Martinez and then the next senator.
Mr. Rico-Martinez: As an example, you can compare the number of
refugees of Mexican origin in the United States, and you will see it is very
low. Here in Canada, there is a higher number.
It is very well known that the Americans politically decide about refugee
situations, and that is why there are some communities in the U.S. where
refugees know they do not have a chance to make an application because they will
not be accepted. That is why they do not do it. You can ask the same question to
Mexicans, the Roma people and many other communities. If you ask the Cubans,
they are accepted just by touching the shirts of the United States. That is why
people choose Canada, because they believe this country has a less politicized
system for refugees, but we are creating one in this bill.
Senator Merchant: Most of my questions have been answered. Thank you
very much for your answers. I was interested in the Roma because we heard
yesterday, I think it might have been from one of the minister's staff, that
they had the option of settling somewhere else in Europe. You have already
answered, I think, that question differently as to why the Roma would choose to
come to Canada. Again, I am very satisfied with your answer because I come from
the Greek community and I know that is how people work. They want to go where
there are people they can identify with. In the beginning they speak the same
language and understand each other.
When people are leaving their own country and they come to a strange country
of customs and they cannot speak the language and have been traumatized
somewhere else, they cannot manoeuvre in the legal system here, so they come
because there are supports here for them. That seems to me to be simple.
How many Roma are there worldwide who are misplaced? I would like to know the
Ms. Csanyi-Robah: I wanted to tell the committee that the Roma
Community Centre in Toronto is the only one in North America. There is no other
organization like us in Canada. There are a couple of culturally based
organizations with Roma people in the United States, so this is a unique
organization that we have.
We have Roma people coming from all parts of Europe who eventually end up
with us, looking for help. They believe that Canada is a mecca for human rights.
They are sure this is the promised land of human rights and that they will be
treated fairly and equally here.
There are approximately 15 million Roma in Europe, dispersed throughout
Europe, but the largest concentration is in northeastern Hungary, western
Romania and the Transylvania area. It is the largest community of Roma in the
world located right there.
There are approximately 2 million Roma dispersed mostly in South America,
Central America and Australia. That is due to times of colonialism when Roma
were enslaved and exported to different parts of the world.
There are approximately 120,000 Roma people in Canada, and some of us have
been here from the early 1900s. My family, in particular, came in 1956 from
Senator Cordy: Thank you to each of you for being here today. My first
question is about the safe country, and I know you explained that Hungary can be
perceived to be a safe country but not necessarily if you are Roma.
Ms. Morrissey, you also spoke about the challenges of the safe country and
the dangers you thought there would be for the LGBT community. Could you expand
on that from the comments you made earlier? Again, a country that might be
perceived to be safe for a majority might not be safe for the LGBT community.
Ms. Morrissey: That is the point. The way all of this seems to be
packaged is to take a big swath and look at everyone through the same magnifying
glass. I do not think that is possible because we are not all the same. People
are not all the same.
Even though there are countries where it appears that they are democratic,
the reality is on the ground. That is where it needs to be considered, not what
is on paper but what is actually happening on the ground to people who live
Certainly, most gay, lesbian, bi and trans people would never go to the
police to report something. It just would not occur to them to do it because
they know what the consequence of that will be.
The fellow I worked with for years got sent back to his country because he
could not prove that he had, in fact, been physically assaulted because he went
to a local healer. He was afraid to go to the hospital because the police were
there looking, watching them.
It is not so much what is written on paper in any country. I think in many
places we are looking at there are always groups of minorities and there are
always exceptions. We cannot just throw a blanket over the whole country or over
a whole group of people and say, "Well, this is a safe country for everyone."
Mr. Rico-Martinez: There is an article in the newspaper today talking
about the three European countries that will not meet the definition for
designated country of origin. One is Bulgaria and the others are Romania and
Lithuania. The rate of acceptance of refugee cases from those countries are over
50 per cent and the number of claims are low.
The mathematical formula that the minister has created to designate a country
of origin does not work even for the continent that he wants to exclude. In that
case, it is not possible just to take a numeric approach when it is related to
human rights. You have to have the international obligations and have to review
the records that country has in order to accept the determination of that
country as safe.
We are not against the concept of safe countries. We are against the
procedure and the mathematical formula, that it is not taken arbitrarily,
because all that information is created here in Canada and not in the country
that we are talking about.
Senator Cordy: I would like to go back. Mr. Thomas, you spoke about
the reduction in the health care program for refugees. The basic medical care
has been replaced by what is being called "urgent and essential care," although
people are not sure of what the definition of "urgent and essential care" is. I
gathered diagnosing a cough and fever would be covered; birth control
discussions, no; checkups, preventative care, no; mental health treatment, no;
but a psychotic episode, yes. It seems almost penny wise and pound foolish.
You can correct me if I am wrong, but I thought you said refugees should have
the same playing field as Canadians. However, refugees do not have the same
playing field as Canadians. Many of them have spent everything they have to come
to Canada. They have nothing. They have no money; they have used it to try to
get access, to get transportation to Canada. They arrive here with nothing.
I am wondering why we have to make it an "us against them" kind of scenario.
Why do we have to say Canadians should not be paying for health care and basic
services for refugees coming in?
Why do we have to play one against the other? Why can it not be that we
contribute for a while to make them very productive citizens in our country?
Mr. Thomas: When you provide a level of benefits far in excess of
those offered anywhere else in the world, then you have a situation where Canada
becomes the destination for people whose lives are not in danger and who are not
threatened and are looking for financial benefits, extended health benefits, eye
glass treatment and dental care. It becomes such a burden on the Canadian
population that the spirit of the nation, which is to extend protection to
people whose lives are in danger, becomes obscured.
The facts on the ground are that our refugee system has a waiting period of
over 1,000 days. It is evident to anyone paying attention that there is
widespread fraud and abuse from people who are not genuine, United Nations
As Mr. Collacott has pointed out, people who are in war-torn parts of the
world, where there are genocidal wars going on, are not making it to our shores.
They are not getting lawyered-up and enjoying half a dozen years of litigation
to promote their cases. Canadians turn away and shake their heads in disgust.
Ms. Morrissey: I would like to make two points.
One is that, under the new Interim Federal Health Program,
government-sponsored and privately sponsored refugees will not have those
benefits either, so I do not understand. We have been given $100,000 for
supporting for three months. We have to come up with the remainder of the money
to support people for the other nine months. Now, on top of that, we have to
make sure that we have enough money to cover ordinary preventative care. As
well, what bothers me about this is that many of these people have spent years
in refugee camps. They have not had access to health care.
I am one of those Canadians. I am retired. I have no eyeglass care. I have no
prescription coverage, and I know that many of my friends do not resent people
who have experienced real persecution in their lives having the possibility, at
least, of being able to see a doctor and have their teeth taken care of. I have
to pay for all of that, and I would pay again to make sure that others had the
The Chair: Senator Cordy, do you have a quick question?
Senator Cordy: It is about wait times, so second round would be great.
Senator Eaton: Of course, people know what a rough time Roma have
throughout Europe. You do not have to be blind. I have been to Europe several
times and heard about that, but why have 95 per cent of claimants from Hungary
abandoned their refugee claims?
Ms. Csanyi-Robah: Senator Eaton, I am very happy that you asked me
That statistic has been manipulated. I just recently met with a man named
Professor Shawn Rehaag who works as a professor of refugee law at Osgoode Hall
in Toronto. I asked him to help me to understand where Minister Kenney continues
to get his numbers because those numbers are not the official IRB numbers that
all of us can access on the Canadian Council for Refugees website. He explained
to me that Minister Kenney is taking the positive claims and dividing that by
abandoned, withdrawn and rejected claims. That is not the actual number of
claims. That is a statistical formula that has been manipulated to come up with
a number that has tarnished and shamed the reputation of the Roma community
across this country and delegitimized Roma refugee claims in Canada.
Of the claims that the Roma have submitted, a small number have been
abandoned, which usually happens not because the person has abandoned them but
because something in the process was missing. For example, a refugee named Paul
from a city in Hungary. Everybody knew what happened in that city when neo-Nazi
paramilitary troops held it under siege for three weeks. It is widely
documented. He came here as a refugee. Minister Kenney heard his testimony at
the Roma Community Centre on October 29, 2011. Paul came to me and showed me a
letter from the Immigration and Refugee Board saying that his claim will be
considered abandoned because he has not submitted translated documentation of
his personal information form, which is his refugee narrative. Those are the
things that are leading to Roma refugees having abandoned claims, not submitting
the proper documentation that needs to be submitted.
When it comes to withdrawn claims, there has been a significant number, but a
lot of that has to do with people who have been living on the margins of society
for a long time. They come here with very little support, and they cannot
navigate through a very complex immigration and refugee system. On top of that,
they find a very unwelcoming environment when they arrive. The Canada Border
Services Agency is already going into the international area and looking for
people with Hungarian passports, and those who have a one-way ticket are being
told to get back onto the planes. They are being told, as they pass through
customs, "We do not want Gypsies in the country." When they arrive here, they
are seeing headline news calling Roma refugee claims bogus. They are losing
hope. Hope is being strangled out of them. If they wait until they receive a
letter from the Immigration and Refugee Board saying that they must leave the
country, they have to get to that airport in three weeks from the date of that
letter, with their bags and children, and return to be homeless in Hungary. Some
people have lost hope. They have decided that they will save a bit of money so
that they can at least have a home for their kids to go back to, and they have
withdrawn their claims because they have lost hope of staying in this country.
Senator Eaton: Do you have a support system? You told me that you are
a teacher. Do you have a support system for Roma wanting refugee status? Do you
help them navigate through the system?
Ms. Csanyi-Robah: As a teacher?
Senator Eaton: No. Is there a support system in your community? You
told me how close you are. You gave me that very heartbreaking story about that
fellow who could not get his documents translated, but I would have thought
that, as a community, somebody would have said, "Here, give me your thing, and I
will translate it for you."
Ms. Csanyi-Robah: I am very happy that you are asking me this question
because, up until now, I have been a volunteer executive director of the Roma
Community Centre. We have had zero funding. When Roma refugees started to arrive
in 2008, there was no Roma community centre for them to go to. We have existed
on paper as a non-profit organization, and we have been housed in a large
immigration settlement organization called CultureLink in Toronto. We were
housed there for 10 years because we never had funding to be able to open up our
own organization. When people started coming, there were very few Hungarian
translators. Hungarian is not a widely spoken language. There is very little
access to information in Hungarian anywhere. People were coming. There was very
little access to translation or to any knowledge about the immigration and
refugee system and how to navigate through it. Shelters were full. People did
not know where to go. We just opened up the Roma Community Centre — in our own
physical office — in October 2011, through us doing fundraisers. Now we have a
base of support for the community.
Senator Eaton: Good for you. Keep it up.
Ms. Csanyi-Robah: Thank you.
Senator Eaton: Do I get one more question? I want to ask Ms. Morrissey
The Chair: Not right now.
Mr. Collacott: I think that there is a fundamental issue here that has
to be discussed. It applies not just to the Roma community but also to the LGTB
community. They both suffer from discrimination, and I do not think anyone in
this room would argue that the Roma community, especially in Europe, do not
suffer a lot.
The issue is this, though: The UN convention was designed to accommodate
people suffering from persecution, essentially by the government. Now you can
argue — and it has been argued — that, if the government cannot stop
discrimination, that is equivalent to persecution. If you use that standard,
though, we have to take 160 million untouchables from India. There are social
problems, obviously, for the Roma, but we cannot solve everyone's social
problems, throughout the world, by bringing them all to Canada. The whole idea
of the UN convention was for a fairly limited number of people suffering from
government persecution. This is the fundamental problem with arguments in favour
of Roma who do live in a democratic country. It is true that it is not
functioning as well as it might in terms of taking care of everyone, but most of
our First Nations could probably claim refugee status in some other country if
you are going to say, "Well, if you suffer from discrimination, you can claim
refugee status somewhere."
Mr. Rico-Martinez: The Roma community put their name forward to be
invited to this committee, and they were not lucky. The Canadian Council for
Refugees is donating the airline tickets, and we are sharing our time with them
in order that the committee has a chance to hear from them. Originally, they did
not have the possibility of doing so.
Senator Eaton: I think it makes the community stronger if they help
themselves, but that is a personal opinion.
May I ask a question of Ms. Morrissey? Ms. Morrissey, I understand what you
are saying, that what happens on the ground is sometimes very different from the
However, when there is a high profile case of a gay woman who comes from the
United States wanting refugee status in Canada, I think that it does not say
very much for our refugee system in its present state.
Ms. Morrissey: I would like to answer that by saying that in any
situation where a sensational event happens, it is sensationalized. It is blown
up. Everybody pays attention to it. In doing that, it illegitimatizes all the
Senator Eaton: Yes, it does, unfortunately.
Ms. Morrissey: We do not have control over individual people and what
Of course every system will have people who, for whatever reason, believe
that they need to leave their country. I have corresponded with lesbian couples
from the South. Obviously, I have had to tell them that one of the things we
look at is the internal flight alternative. However, in the environment in which
they live, they experience persecution, not just discrimination — persecution
because people heckle them and throw fire bombs at their houses. It is really
unfair to single out one example and use that example because in every group
there will be somebody who will try to do that. Even of those who do try, I
genuinely believe that they think it is what they need to do.
Senator Eaton: Thank you for your answer.
Senator Nancy Ruth: Ms. Morrissey, Could you tell me approximately how
many LGBT refugees have come into Canada in a year, on average, over the last
Ms. Morrissey: That number is very difficult to provide because they
are all designated as members of a particular social group, so there are no
stats. We have no way of being able to detect that. All we have is anecdotal
information because we have been holding monthly drop-ins for 12 years now. We
have contact with a number of refugee lawyers who focus in particular on people
making claims on the basis of sexual orientation and gender identity. Certainly,
we know that over the past five years there have been somewhere around 10,000 to
Senator Nancy Ruth: What percentage is that of all refugees to Canada
in the last five years?
Ms. Morrissey: It is very small. I do not have the stat on the number
that came in overall; but it is a very small percentage.
Senator Nancy Ruth: You said that the safe country category makes
decisions on politics and economics and not on human rights; and that is an
issue for you. When the safe country list becomes a reality and if the minister
were to make an exception for LGBT from safe countries, would that help? Would
it cause other problems; and if so, what would they be?
Ms. Morrissey: That is something that we have discussed a lot because
it was thought that might be one of the possibilities. Our fear and concern
around that is that, in fact, because so many doors and windows are being
closed, people would try to make a refugee claim based on sexual orientation.
That does not help our cause at all.
Senator Nancy Ruth: I do not understand you. Give me an example. Tell
me a little story.
Ms. Morrissey: I can tell you a story about somebody who came to one
of our drop-ins. He would not tell us his name and would not identify the
country he was from. A lot of things were going off in our brains and we were
not convinced necessarily that this particular man was gay. If there are
designated countries, and considering how many could be designated, people who
are desperate enough to come to Canada to find a place where they can be safe
will recognize the opening: They can say they are gay. That will not help
anybody, in particular genuine refugees making their claim based on sexual
In Canada, of those who come to us, we have a pretty good idea because under
the current system because we have known them for one to almost three years. It
is very easy for us to be able to say that we have no doubt in our minds.
However, in 15 days, that will not happen. The shortened timelines will not only
make it difficult for people who have a genuine basis of claim, but will also
lead to the possibility of others. The man who was the Western Yukon B.C. head
of the refugee board until just recently said that sexual orientation claims are
the hardest ones to determine because of the complexity and because so many
different factors are involved.
We had thoughts about a different way that might be possible. It would do
away with the whole thing around designated countries. We have that in our brief
that outlines another possible route to go. It would involve the CBSA being able
to make random checks and review certain things. I do not have all the details
in my head because there is so much to it. There are alternatives, and that is
important to look at.
Senator Nancy Ruth: I will ask Mr. Thomas about eyeglasses and dental
care. I could not help but look around this table and think of the poor taxpayer
that pays for most of us to have a certain percentage of our eyeglasses and
dental care looked after too. I was interested when you said that refugees
should be treated the same as other Canadians. To my knowledge, refugees are not
allowed to work when they first come to Canada. When you cannot work, you cannot
buy dental care, unless you come with a lot of savings, which of course Senator
Cordy has made clear that often they do not. Did you know that?
The Chair: If I may interject, it is important to note that most
Canadians and most of the people at this table do not have public support for
eyeglasses and dental care. That is an issue.
Senator Nancy Ruth: How is that so, senator?
The Chair: Certainly not in my province.
Senator Nancy Ruth: Certainly we at this table have it.
The Chair: It is not publicly paid.
Senator Nancy Ruth: The taxpayers pay for it.
The Chair: You are a member of a group health plan. That is a
Senator Nancy Ruth: Most people in Canada do not have health plans
either because they are in part-time jobs, but they are allowed to work.
Do you agree with the fact that refugees, when they first come to Canada,
cannot work and earn money and, therefore, cannot purchase health care?
Mr. Thomas: Yes, so the commitment of the government to have a
decision to extend permanent residence status within 45 days to DCO refugee
claimants and within 216 days to non-DCO refugee claimants will have a salutary
effect similar to the one we are seeing with the 10-year super visa. I believe
the government is in the process of setting up an adjudication system that will
render fair decisions in a reasonable time period so that genuine refugees will
be able to achieve permanent residency status and join Canada and begin to
The facts on the ground are that Canada has the most generous regime of other
people's money that it throws at refugee claimants. We are spending 1,038 days
to sort out whether or not these claims will be accepted, and it is a huge
incentive for people to come here.
Senator Nancy Ruth: I do not know whether it is an incentive or not. I
would think there would be other things that would be far more crucial for
anyone who chose to come on refugee status, in any country.
Mr. Thomas: We are getting 95 per cent —
The Chair: Mr. Thomas, we will not get into a debate on this. You can
answer the question and we can ask questions.
I will move to Senator Seth, to be followed by Senator Wallace.
Senator Seth: Thank you. All witnesses have given such great
information. It has been very interesting.
I deeply sympathize with the problems of the Roma community. Canada is a very
generous country and has been spending millions of dollars on Roma refugee and
asylum claimants, providing welfare and a super health system, which I am aware
of. I am a physician. I write prescriptions. Eyeglasses and dental are all fully
covered. I know that from my years of practice and filling out so many forms for
While their refugee status is in process, they have a work permit. What
percentage of the Roma community is employed or seeks employment or looks for
Ms. Csanyi-Robah: First, people do not ask to wait for 1,038 days to
have a hearing and a final decision. People do not want to have to wait that
long. Because there are not enough judges at the Immigration and Refugee Board,
that is what prolongs the time period more than anything else. People want to
have a decision and get on with their lives. It is very difficult to live in the
mental, emotional and physical state of not knowing whether you are going or
coming, for a three-year period, especially for children and youth in school.
They do not know what their life will look like from one minute to the next.
People do not choose to be in this system for three years.
Second, from what I have seen during my time at the Roma Community Centre,
many people come and ask for help with work permits. We have volunteer
university students who help with teaching people how to build their resumé, to
find volunteer positions out in the community, and to have some integration and
socialization experience in our Canadian community. Children are going to
We have refugees who came in our last large wave in 1997 who were accepted
and are now college and university students. They are volunteering at the Roma
Community Centre and giving back to the community.
We are no different than any other community in Canada. People want to work
and go to school. We are no different than anyone else. There is nothing about
us that makes us averse to work or school.
When it comes to health care, there is no huge lineup of Roma refugees
running to abuse the Canadian health care system. In fact, people have to wait
so long for a family doctor that they often do not even get access to health
care. Average Canadians cannot find a doctor. We have to wait for six months. Do
not think that refugees go to the front of the line for a doctor when they get
here, because they do not. They have to wait in that same lineup, often behind
Canadian people, before they can access a doctor.
We have children who need prosthetics, who are missing limbs, for example.
They cannot get to a doctor when their leg has outgrown the prosthetic, and they
cannot leave the house until they have a properly fitted prosthetic.
There are many issues in the community with regard to being able to access
the health care system when needed. No one is running to Canada to go to the
dentist or to get glasses.
There are murders happening in the Roma community in Hungary, the Czech
Republic and Slovakia. Just three days ago, an off-duty police officer was
convicted of killing an entire Roma family in Slovakia.
It is not just Roma who are coming from these countries. Jewish people are
coming from these countries as well. The current regime in Hungary is not just
attacking the Roma community; it is attacking the Jewish community. We have
Jewish refugees coming from these countries as well, and high-profile ones, some
of whom you have not heard about yet because their cases are in the system and
they cannot take the chance of ruining their cases.
Senator Seth: Thank you. However, I am telling you what I see in my
office. Everything is provided to the refugees. When it comes to the workforce,
it is very hard for them to go back because they have been sitting so long at
home, not working. They are not used to it. They need education. We encourage
them so much: "Please fill out the form." "I cannot go. I have this."
Maybe we see a small number of people. Whether it is Roma or any kind of
refugee, they are the same. They have the same trend, unfortunately, and that
delays things quite a bit. How come we do not get similar benefits? Our
government has been very generous.
The Chair: That last question is not relevant to the specifics here.
Mr. Rico-Martinez, if you can stick to the fundamental question.
Mr. Rico-Martinez: Yes. If you review the statistics of social service
recipients anywhere in Canada, you will see that the community that spends the
least time receiving welfare in Canada is the refugee community, and that
includes the Roma community.
Senator Seth: Thank you.
Senator Wallace: Mr. Collacott, I was interested to hear you say — and
Mr. Thomas said much the same — that in your view, Canada is the most generous
country in the world in terms of our refugee requirements and what we provide to
those seeking refuge.
Along the same line, the opening comment you made was that in your opinion we
should bring our immigration policies in line with those of other countries.
When you say that, what countries are you comparing us to that you believe we
should be brought into line with? Second, to what extent do you believe that
Bill C-31 is a step in the process of bringing us, as you say, into line with
those other countries?
Mr. Collacott: Each country has its own system, and they vary
considerably, but there are some common features. Certainly some of the European
countries do not accept people who come through safe third countries, where they
should have made their claims. Most of the European countries have been
struggling with large numbers of illegals, and not just refugee claimants, but
The government, as far as I can make out, has studied what some other
countries are doing to see what works well and what does not work well. I think
most other countries have more sensible systems than we do. I think the question
has been asked several times: How come we get 95 per cent of the Hungarian
claims in the world? In 2003 we took two thirds of the Sri Lankan claims for the
whole world. We took 1,100 people and the rest of the world took 700.
Our system can justifiably be argued to be too generous in some respects, and
this has had an impact on public support. Canadians do support taking a
significant number of genuine refugees; there is no question about that.
However, they are very much aware of the abuse of the system, and it has been
allowed to fester for too long. Most of the things in this legislation are to
respond to those problems. If we do not do that, I think we will significantly
lose public support for it. I believe we should be taking a certain number of
genuine refugees, but the system has been so widely abused.
Other countries have had some of the same problems. I mentioned the
Australians, when they got soft on letting boats arrive. They have had over 300
boats, including 18,000 claimants, arrive since then. You get into trouble. That
resulted in one Prime Minister in Australia losing his job, Kevin Rudd.
I think you have to look at public support. You also have to look at
international principles and what the refugee convention intends, although I
think it is out of date. There are a whole bunch of issues here, but I think
public support is essential.
The people of Canada are well aware that the system is working very badly.
This legislation tries to address at least some of it. It does not address the
question of safe third countries — that is the big gap that will probably
prevent it from having a major impact on what is happening.
Senator Wallace: As you point out, we are always concerned about being
a leader when it comes to democracy and having an open and welcoming country. We
all arrived here by boats — my family did 200 years ago — our forefathers and
If there are best practices, there are better ways of looking after these
matters that we see in the world. My sense is that the government is conscious
of that and looks for the best practices. My sense is that is reflected to a
large degree in Bill C-31. However, I think we need to look toward where we fit
and where we place.
Mr. Collacott: We like being the most generous country in the world,
and we are, but perhaps we are generous a little too much. When I was an
ambassador and high commissioner and people told me what devices they used to
get their relatives into Canada, we were actually the laughing stock. We do some
things very well and I think we should take credit for it. However, we are an
international joke to some extent as far as the refugee system is concerned. We
have to do something about it, especially if we are to maintain public support.
Senator Seidman: I do understand that there is enormous emotion
involved and very serious issues at stake when we speak about these things.
However, serious accusations were made of the minister and of his department —
accusations about manipulating numbers. I do think that the record must be
For the record's sake, I will put the official statistics from IRB for 2010
for Hungary on the record, if I may. Six per cent were rejected by the IRB; 9
per cent were abandoned; and 83 per cent were withdrawn.
That is pretty much what I would like to do, namely, have that on the record.
Ms. Csanyi-Robah: Can I answer that, please?
The Chair: You made statements with regard to numbers. This was
another set of numbers related to the same point you made. If you have a point
of clarification, please go ahead.
Ms. Csanyi-Robah: Yes; please. The 2011 statistics, though, show that
the withdrawal rate is 55 per cent. If you look at the 2011 statistics, it is
less than half of 2010.
The Chair: We have numbers on the table.
I am into the second round and there are three senators on it: Senator
Jaffer, Senator Martin and Senator Cordy. Senator Jaffer, you have been good at
focusing your questions. I will ask you to continue to do that. I will ask
Senator Martin and Senator Cordy to minimize their preambles and to get directly
to their question and identify a specific respondent. To the witnesses, I will
ask you, as well, to answer the question as clearly as you can. I would like
these three senators to have an opportunity to get their questions to you and to
get a quick answer.
Senator Jaffer: Ms. Morrissey, you have been working on this issue for
years and years.
Listening to you again today brought home to me the issue of safe countries.
Unfortunately, I did not get to ask the minister because I prioritized wrongly,
but I did ask the officials about the designated countries of origin.
I am not necessarily against that designation if it is going to give
integrity to our system, but the angst I have is the same one that you have. I
gave the officials the example that you can come from the United Kingdom, where
you have an issue of honour killing, and you come to Canada. You gauge that it
is a safe country, but it is not safe for that individual. Here, the U.K. it
would be a safe country. I was told that the gender guidelines would be looked
I believe the time has come for us to work with the minister to have
eligibility question guidelines to deal with the issue that you have raised. Do
you think that would be a way to help the situation?
Ms. Morrissey: Absolutely. We have been asking for that for a long
time. Many of us who work particularly around the refugee system for sexual
orientation and gender identity think we desperately need it.
Senator Martin: I have one note to also put on the record regarding
the designation of DCOs and the concern that you expressed. I have done my
research and know that in part of the process of designating countries there
will be a DCO country review that includes input from the Government of Canada
partners, through the interdepartmental country review committee. There are
other quantitative criteria that you described, but there are also qualitative
criteria, which are contained in clause 58 and are enshrined in the legislation.
I think it is important to note that it will be quite a process and it will be
carefully undertaken. We hope that the officials will work closely and consult
My question is to Mr. Thomas, who represents the taxpayers, all of us around
The Chair: Will you rephrase that? Simply put your question to Mr.
Senator Martin: For Mr. Thomas, who is representing his federation,
from surveys or work that you have done with your organization, would you speak
to how this legislation is making the system more efficient and balanced to
consider the burden on Canadian taxpayers and the fact that we are overly
generous and that we are maintaining or achieving more balance through this
Would you speak to that?
Mr. Thomas: Yes. I believe that our refugee system, although it is
somewhat characterized as overly generous, is also quite punitive to the people
who are wrapped up in it, as Ms. Csanyi-Robah alluded to. When you speak about
children who are in their schools, and it is going on three years and there is
no decision — they do not know where they will be — this is a system that has
lost the confidence of both the people who have applied to come to Canada as
refugees and the confidence of Canadians. It is not a credible system.
The onus is on the government. This legislation is popular legislation. It is
broadly supported in the Canadian public. Despite the attacks that have been
waged against it, the legislation is being put forward. After all, this is a
political government; the minister is a politician. It is popular legislation
and people want this.
The legislation has not been enacted; we are only speculating about how it
will work. However, when we look at super visas for family reunification, for
bringing elderly parents into the country, in eight weeks we have had 83 per
cent approvals and over 3,000 parents have been reunited with their families as
a result of an initiative similar to this, which is to bring a rules-based
system to have more accountability and to eliminate a lot of the gamesmanship
associated with the system. I believe that the reforms that are proposed here do
have a practical aspect to them.
Claims have been made by the government about cost savings, and we do find
the idea of saving money to be attractive. However I think all Canadians want a
system that makes speedy, fair decisions and that identifies genuine refugees
and offers them refuge in Canada so that they can support themselves and make a
contribution to Canada.
We believe that these reforms have a good chance of success. Similar reforms
that this government has introduced are succeeding.
I hope I have answered your question.
Mr. Rico-Martinez: The super visas and the IFH are not part of Bill
C-31, so the comments about how effective this legislation will be from the
taxpayers' perspective is out of order, in my opinion.
Second, having a specialized independent committee of experts to determine
which country will be considered a safe country is totally different from asking
for input. The Canadian Council for Refugees believes that that committee is the
way to go to analyze the countries we are facing.
Third, what will be the impact on taxpayers of the detention of refugees? We
believe that the savings in the Interim Federal Health Program will be less than
it will cost to keep families in detention for up to a year. Detention is
mandatory for six or seven months. The cost analysis must go deeper.
My last point is about work permits. To get a work permit in Canada now takes
between four and five months. These people have no way to pay for anything in
Canada because the Minister of Immigration does not issue work permits to
refugee claimants in a timely manner. The process is very bureaucratic. People
need help to go to the doctor, for example, and someone has to pay the bill. If
they do not have money, who will pay the bill?
The federal government is dumping those expenses on the provinces because the
provinces administer the hospitals and they have to open the door for people in
emergency situations. Someone will pay the bill. Taxpayers will continue to
carry that burden as a result of the federal government's dumping it onto the
Ms. Morrissey: The conversation around the super visa is a red
herring. You cannot compare apples and oranges. Super visas will work in the
case of people who have adequate money to pay for the insurance. We are talking
about refugees, which is a very different group of people. I agree with Mr.
Rico-Martinez about the issue of work permits, but I would add that there has
already been a huge complaint from immigrants who come to this country with
professional qualifications and are not able to work in their field. Refugees
have even less chance. Most refugees that I know work two and three jobs. They
start out with the worst shifts that no other worker will take. We are not
talking about refugees who come and very quickly become leaders in business or
anything like that. There are some real misconceptions around the comparison
between visitors' visas, super visas, immigrants and refugees.
Senator Cordy: Mr. Thomas, I agree with you that the processing time
is far too long. People should not be waiting 1,000 days, three years. That is
Most of the correspondence that I have received on this bill is about the
15-day period for the appeal process. The appeal involves gathering up the
information and evidence that was presented at the IRB, and recently the IRB
announced that they would not prepare transcripts of hearings for people who
appeal. That means that they have to listen to the testimony, which will take
We know that a judicial review at the Federal Court takes 45 days. Do you
think 45 days would work better than 15 days for appeals?
Mr. Rico-Martinez: If you talk to lawyers, they will ask for more than
that. We have become used to the idea of 15 days to submit the first form to
apply for a judicial review and 30 days to perfect the file. Most of the people
advocating for refugees understand that you have to set up times. Fifteen days
to submit the application and perfect the file is not enough. That is why we are
requesting that you make it 15 days for the application and 30 days to perfect
the file. That will accord with Federal Court procedures.
Ms. Morrissey: In addition to the timelines for the appeal, when you
look at designated countries, people who lose their hearing at the first
instance will not have the opportunity to get a stay of removal, will not have
the opportunity to file on humanitarian and compassionate grounds, and will not
have access to the appeal division. In other words, if the single person who
makes the decision about the person's refugee claim makes a mistake, the
applicant's life can be in jeopardy. I think that principle is absolutely
Mr. Collacott: On that last point, there are many other countries in
the world where someone can claim refugee status.
I was asked about what other countries do. The Netherlands has a system where
a refugee claimant has six days to prepare their case. After another eight days,
they are either fast-tracked because they seem to have a very strong case or
they are flushed out of the system through some kind of review process because
they are considered to not have a good case at all, or they are in the middle,
in which case the process takes much longer, and that is the case for many of
them. Essentially they triage.
In the United States they used to let asylum seekers, as they call them,
work. We are the only ones who use the term "refugee claimants," although it is
the same thing. Now they try to complete the process in six months. Asylum
seekers or refugee claimants cannot work in the United States. They found that
allowing them to work gave them incentive to put down roots and try to stay
indefinitely. That is a comparison with a couple of other systems in certain
Senator Martin: Ms. Morrissey, in terms of an appeal process, every
claimant has at least one recourse mechanism, one of which could be to ask for a
judicial review. If that one IRB official, that one first interviewer, makes a
mistake, there is still at least one recourse mechanism for every claimant.
Ms. Morrissey: With due respect, I would like to disagree with that.
First, you have to request leave from the Federal Court. The Federal Court does
not always give leave. You have to get a stay of removal and you cannot always
get a stay of removal. Therefore, while it sounds good, it does not always
function that way in reality.
Senator Jaffer: I understand the Federal Court just looks at the
record; it is not another oral hearing.
Ms. Morrissey: That is right; it is only the record.
The Chair: Thank you all very much.
As I said at the end of our previous session, all we have to do is listen to
the discussion at this table today to realize how complex, challenging,
difficult and yet important these issues are and how very reasonable people with
very different experiences can come to different points of view with regard to
the issues. It also shows how facts are difficult to come by, even on such an
issue as the awareness at this table of what Canadians in general actually have
access to in terms of supplemental health benefits. It is obvious that is an
issue that not everyone fully understands, and the people at this table do not
represent the overwhelming majority of Canadians with regard to that kind of
All that is simply to indicate the complexity of the issue we are dealing
with and how we are responsible now for making recommendations on this important
I want to thank my colleagues for framing their questions to attempt to get
answers to help us in reaching decisions on this bill, and I want to thank the
witnesses for attempting to provide us with the answers. Certainly, you have
provided us with the answers that are based on your experiences and awareness in
With that, on behalf of my colleagues and the committee, I want to thank our
witnesses for being here with us today and for contributing to this process.
With that, I declare the meeting adjourned.
(The committee adjourned.)